UNIVERSITY  OF  CALIFORNIA 


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OUR  FEDERAL  RELATIONS 


FROM  A  SOUTHERN  VIEW  OF  THEM. 


By  o.  ns/^.  :k.obeik:;Ts, 

AUSTIN,  TEXAS. 


COPYRIGHTED,  1892. 


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AUSTIN,  TEXAS: 

EUGENE    VON    BOECKMANN,  PRINTER. 
1892. 


A  DEDICATION. 


Perpetual  change  is  the  law  of  creation.  When  will  man  be  wise 
enough,  and  good  enough,  to  prevent  the  changes  in  organized 
society  from^being  evils  to  some  persons,  and  special  benefits  to 
others  ? 

Possibly,  when  he  learns,  and  acts  on  the  conviction,  that  there 
are  other  precious  things  to  live  for,  besides  gold  for  himself  and 
over  others. 

^To  the  young  men,  who  will  aspire  to  reach  that  elevatio'"     f 
human  excellence,  this  little  work  is  respectfully  dedicate*^ 


I 


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'  •   •  • « 


PREFACE. 


OUR  FEDERAL  RELATIONS. 


This  little  volume  consists  of  Lectures,  and  Addresses,  intended 
to  exhibit  our  Federal  Relations,  from  a  Southern  standpoint. 
They  were  prepared  during  busy  engagements  in  other  employ- 
ments, without  any  effort  to  attain  to  literary  excellence;  the  lead- 
ing object  being  to  bring  to  view  such  facts  of  history,  such  acts 
of  the  government,  and  such  views  relating  to  them,  as  would  tend 
to  give  the  young  men  of  the  present  time  a  fair  general  under- 
standing of  the  subject.  It  has  been  published  at  the  request,  and 
with  the  assistance  of,  the  Law  Classes  of  the  University  of  Texas, 
at  its  present  session,  1891-2. 

The  two  addresses  have  been  introduced  with  the  lectures,  to 
exhibit  more  strikingly  the  sentiments  of  the  people  of  Texas,  in 
regard  to  their  Federal  relations,  at  the  times  to  which  they  relate, 
and  when  they  were  published. 

It  will  be   found,  that  the  same  facts   and  conclusions  are  con- 
tained in  several  of  the  lectures   to  the  extent,  that  was  necessary 
to  elucidate  the  subjects  under  consideration  in  each  one  of  them 
which  however,  may  but  serve  to  make  a  more  thorough  compre  - 
hension  of  the  subjects.  The  Author. 

January  i,  1892. 


^4Gyi2 


CONTENTS. 


Page. 

Lecture  :  The  Causes  that  led  to  the  War  between  the 
States  North  and  South 5 

Address  :  On  the  Crisis  in  i860,  then  imposing  a  duty 
upon  the  People  of  the  South,  and  exhibiting  the 
Wrongs  done  by  the  Northern  States 21 

Lecture  :  On  Sovereignty;  its  location  and  effects  in  the 
Governments  of  America 50 

Lecture  :  On  the  Close  of  the  War,  and  President  Andrew 
Johnson's  Reconstruction  of  the  Southern  States,  in- 
cluding the  State  of  Texas 69 

Address  :  In  1S67,  by  the  Texas  Delegation  elected  to 
Congress,  giving  reasons  for  their  admission,  and  mak- 
ing a  protest  against  the  Military  Government  and  Rev- 
olutionary Measures  then  being  prepared  by  Congress. 
Drawn  up  by  O.  M.  Roberts,  and  signed  by  the  others 
present  in  Washington,  and  published  in  the  National 
Intelligencer,  January  10,  1867 81 

6.  Lecture  :     The    Congressional    Reconstruction    of   the 

Southern  States,  and  especially  its  revolutionary  change 

of  the  Federal  Government,  and  its  operation  in  Texas     94 

7.  Lecture  :  A  Supplement  to  the  two  Reconstructions,  ex- 

hibiting the  effects  of  the  action  of  the  Military  Author- 
ities, in  the  effort  to  govern  the  People 1 1 1 

8.  Lecture  :  Constitutional  Goverment  in  the  United  States. 

Its  revolutionary  changes  in  its  Powers  and  Objects,  by 
construction  and  assumption 128 

9.  Lecture  :  On  the   Violations  of  the   Rights    of  Private 

Property,  by  American  Governments 146 

10.  Lecture  :  On   the  History  and   Burden  of  Taxation  in 

the  United  States  and  in  Texas 160 

APPENDIX   NO.  I. 

11.  Lecture  :  In  the  University  of  Texas,  by  O.  M.  Roberts, 

Law  Professor,  February  26,  1892, — On  the  Use  and 
Misuse  of  the  Principle  in  the  Expressions  in  the  Dec- 
laration of  Independence,  written  by  Thomas  Jefferson: 
"All  men  are  created  equal;  that  they  are  endowed  by 
their  Creator  with  certain  inalienable  rights ;  that 
among  these  are  life,  liberty,  and  the  pursuit  of  happi- 
ness" --.     1-23 

APPENDIX    NO.  2. 

12.  Lecture:  On  the  Evolution  of  the  Government  of  the 

United  States,  from  a  Federal  Government  in  1790,  to 
a  National  and  Paternal  Government  in  1890,  by  its 
action  during  one  hundred  years 1-16 


THE  CAUSES  OF  THE  WAR  BETWEEN  THE  STATES, 


PUBLIC  LECTURE  IN  THE  UNIVERSITY  BY  O.  M.  ROBERTS,   LAW  PROF. 


The  causes  which  led  to  the  late  civil  war  between  the  North 
and  South  may  be  traced  back  to  the  formation  of  the  government 
of  the  United  States.  The  very  great  and  good  men  who  were  in 
the  Convention  that  framed  the  Constitution,  were  not  agreed 
among  themselves  as  to  the  shape  and  powers  of  a  goverament 
which  would  be  best  suited  to  the  American  States.  A  portion  of 
them  were  in  favor  of  the  erection  of  a  strong  central  govern- 
ment; while  others  were  in  favor  of  interfering  as  little  as  pos- 
sible with  the  rights  of  the  States.  The  Constitution  was  a  com- 
promise of  these  conflicting  views.  It  was  a  compromise,  under  a 
pressure,  by  the  use  of  general  terms,  that  harmonized  their  action 
for  the  time,  without  changing  or  remoulding  their  respective 
opinions.  As  an  entirety,  it  was  not  responsive  to  the  judgment  of 
either  party.  The  same  difference  of  opinion  existed  among  the 
people  of  the  States  for  whom  it  was  made,  and  has  continued  to 
exist  to  the  present  time.  The  Constitution,  from  its  brevity  and 
generality,  is  necessarily  the  subject  of  construction;  and  each 
party  has  been  inclined  to  construe  it  so  as  to  make  this  govern- 
ment, in  existence  under  it,  conform  to  their  own  views  of  what  it 
should  be. 

The  preponderance  of  the  Northern  mind  has  ever  been  predis- 
posed to  extend  and  enlarge  the  powers  and  objects  of  the  general 
government  by  a  liberal  construction.  The  preponderance  of 
Southern  mind  has  been  predisposed  to  a  strict  construction,  by 
which  the  action  of  the  general  government  should  be  confined 
within  its  well  recognized  powers  and  objects.  Massachusetts,  the 
mother  of  Northern  States,  is  the  type  of  the  former  principle. 
Virginia  the  mother  of  Southern  States,  and  author  of  their  leading 
ideas,  is  the  type  of  the  latter.  As  a  matter  of  mere  philosophical 
enquiry,  without  any  partisan  bias,  it  is  easy  to  perceive  that  Massa- 
chusetts must  have  had  greatly  the  advantage  of  Virginia  in  this 
struggle,  from  the  continual  influence  of  the  prevailing  interests, 
prejudices,  passions,  and  changes  of  public  sentiment,  in  a  popular 
government.  Virginia  statesmen  were  placed  in  the  position  of 
demanding  the  "bond"  in  every  instance,  although  it  miglit  pre- 
sent  a    case  of  great  public   inconvenience  or   hardship;  whereas 


6  OUR    FEDERAL    RELATIONS. 

the  liberal  constructionist  could  avail  himself  of  every  popular 
furor,  every  pressing  necessity,  or  plausible  pretext  of  interest,  to 
enlarge  the  powers  and  objects  of  the  general  government. 

Without  discussing,  in  detail,  the  various  important  measures 
and  events,  which  mark  the  history  of  the  general  government,  it 
will  here  suffice  to  say,  that  this  struggle  of  enlarging  the  powers 
and  objects  of  government  on  the  one  hand,  and  of  confining  and 
restraining  them  on  the  other,  entered,  with  more  or  less  influence, 
into  almost  every  one  of  them;  so  that  the  conflict  has  been  in- 
cessant from  the  origin  of  the  government  to  the  present  day. 
When  one  subject  would  rise  up  into  public  action,  pass  through 
the  ordeal,  and  find  either  a  permanent  or  temporary  quietus,  by 
the  popular  verdict  on  one  side,  or  by  concessions  and  compromise, 
another  subject  would  soon  be  found  to  raise  the  same  questions, 
and  elicit  the  same  strife.  Sometimes  the  government  has  been 
administered  upon  one  principle,  and  sometimes  upon  the  other, 
and  sometimes  upon  a  combination  of  both  for  a  time;  but  how- 
ever allayed  for  a  season,  in  every  turn  of  public  affairs,  the  two 
principles  would  rise  up  in  antagonism.  The  breach  between  them 
has  regularly  grown  with  the  growth  and  expansion  of  the  govern- 
ment, and,  instead  of  being  healed,  continued  to  widen  more  and 
more  with  the  settlement  of  every  question.  This  has  resulted,  \n 
part,  from  an  increasing  diversity  of  interests  influencing  the  minds 
of  those  who  governed  the  country,  and  in  part  from  the  diversity 
in  the  force  of  political  obligation  upon  the  minds  and  conciences 
of  men,  induced  by  different  mental  training,  and  different  mental 
organizations.  In  the  first  days  of  the  Republic,  the  difference  of 
interest  between  two  sections,  north  and  south,  had  not  become  so 
great  as  to  manifest  an  immediate  localization  of  these  different 
principles  of  construction.  By  degrees  however,  they  were  more 
and  more  localized  in  proportion  as  the  South  became  more  exclu- 
sively agricultural  in  its  industrial  pursuits,  and  the  North  devoted 
itself  to  commerce,  manufactures  and  shipping. 

The  merchant,  the  manufacturer,  the  ship  owner,  the  ship, 
builder,  and  the  capitalist  generally  who  make  profit  on 
trade,  are  ever  ready  to  enlist  the  action  of  government  in  aid  of 
their  profits  or  speculations;  and  their  business  relations,  wealth 
and  intelligence  generally  give  them  an  influence  sufficient  to  ac- 
complish their  objects.  The  agriculturist,  on  the  other  hand,  is 
isolated,  and  rarely  ever  claims  any  bounty  for  his  labor  other 
than  that  which  is  conferred  by  a  generous  soil  and  his  own  indus- 
try, with  his  rights  of  person  and  property  protected. 

Thus,  the  Northern  people  acquired  the  habit  of  applying  to  the 
general  government  for  aid  directly  or  indirectly  in  their  leading 
pursuits,  and  were  consequently  constantly  seeking  to  enlarge  the 
powers  and  objects  of  its  action.  This  was  granted  to  the  preju- 
dice of  the  Southern  people,  who  obtained  no  corresponding  ad- 


OUR    FEDERAL    RELATIONS.  f 

vantages  to  their  pursuits,  from  the  action  of  the  general  govern- 
ment, 

A  country  shapes  the  character  of  its  inhabitants.  Its  charac- 
teristics and  surroundings  influence  largely  their  destiny.  The 
North  abounded  with  good  harbors  and  inlets,  navigable  rivers 
and  lakes;  was  situated  in  the  northern  portion  of  the  temperate 
zone,  near  the  northern  fisheries,  with  a  rugged  surface,  compari- 
tively  barren  soil,  and  cold  climate,  and  its  people  were  therefore 
naturally  led  to  manufacturing  and  commercial  pursuits.  The 
South  had  but  few  good  harbors  and  navigable  rivers,  and  was 
spread  out  in  fertile  plains,  with  a  genial  climate,  adapted  to  the 
richest  staples  of  commerce,  cotton,  tobacco,  rice  and  sugar. 
The  European  immigration  followed  the  channel  of  commerce, 
and  poured  into  the  northern  parts  with  a  constantly  swelling  tide, 
making  labor  abundant,  which  is  the  foundation  of  national  wealth. 
This,  with  the  enhanced  value  of  tillable  lands,  rendered  slave 
labor  valueless  there,  and  caused  the  Northern  States,  to  pass 
emancipation  laws,  by  which  the  negro  slaves,  instead  of  being  set 
free,  were  transported  to  the  South,  and  sold  to  those  who  could 
use  them  with  profit  in  agriculture.  After  iSoS,  by  a  provision  in 
the  Constitution,  no  more  African  slaves  could  be  imported,  and 
European  emigrants  had  a  repugnance  to  settle  in  a  slave-labor 
country;  by  which  the  South  was  made  dependent,  for  an  increase 
of  population  and  labor,  in  the  main,  upon  the  natural  increase  of 
its  own  white  and  negro  population;  and  in  consequence  of  its  vast 
extent  of  fertile  territory,  labor  was  always^  scarce,  and  not  ade- 
quate to  its  development. 

Under  the  state  of  things  here  presented  in  the  North,  individ- 
ual prosperity  sought  an  investment  of  its  surplus  in  companies  or 
associations,  private  or  public,  by  which  they  were  taught  the 
advantages  of  combination — combination  of  capital,  of  effort,  and 
of  mind — which  resulted  in  building  up  their  common  schools,^ 
their  high  schools,  their  commerce,  their  manufactories,  their 
shipping,  their  railroads,  canals,  other  internal  improvements,  their 
domestic  economy,  and  their  improved  agriculture.  And  in  all 
these  pursuits,  whatever  could  not  be  done  by  individual  enter- 
prise was  consummated  by  the  co-operation  of  individuals,  or  the 
aid  of  goverment,  state  or  federal,  applied  either  directly  or  in- 
directly. 

Under  the  state  of  things  here  presented  in  the  South,  an  exactly 
opposite  result  was  produced.  Individual  prosperity  sought  an 
investment,  for  its  surplus,  in  the  acquisition  of  broader  fields,  and 
more  slaves  for  laborers.  The  more  wealthy  the  individual  became, 
the  more  exclusive  he  became,  and  the  less  he  was  inclined  to  seek 
co-operation  in  anything,  and  the  less  he  looked  for,  governmental 
appliances  for  aid.  All  he  asked  or  wanted  from  government 
was  to  be  let  alone,  with  only  the  general  protection  of  the  laws. 


8  OUR    FEDERAL    RELATIONS. 

Thus  were  the  people  of  the  two  sections  being  stamped  with 
distinctly  diflferent  characters  in  their  industrial  pursuits,  and  hab- 
its of  life.  The  one,  skilled  in  all  the  arts  of  co-operative  effort, 
exstending  from  the  private  co-partnership,  up  through  all  the 
diversity  of  combinations,  to  the  co-operative  action  of  the  gov- 
ernment, state  and  federal.  The  other  was  exclusive  in  individual 
effort,  self-reliant,  without  co-operative  aid,  whether  of  individuals 
or  of  governments.  With  the  one,  government  was  made  for  general 
equal  protection,  and  not  for  private  advantage  otherwise. 

This  view  may  serve  somewhat  to  explain  why  the  Northern  peo- 
ple, without  apparent  consciousness  of  wrong,  have  so  persistently 
sought  to  enlist  the  general  government  in  aid  of  their  various  in- 
dustries, interests,  and  peculiar  views;  and,  when  necessary  for 
that  purpose,  to  enlarge  the  powers  and  objects  of  the  general  gov- 
ernment; as  well  as  why  the  South,  in  dismay,  and  with  the  repug- 
nance of  what  to  them  seemed  unreasonable  exactions  for  private 
advantage,  and  dangerous  aggressions,  have  declined  to  seek  their 
own  private  aggrandizement  from  the  action  of  the  general  gov- 
ernment, have  so  often  asked  "to  be  let  alone,"  and  have  continu- 
ally sought  to  keep  the  action  of  the  general  government  within  the 
scope  of  its  recognized  powers  and  objects,  as  originally  designed 
by  its  framers. 

The  great  West,  varying  in  its  leading  characteristics  from  both 
North  and  South,  being  nevertheless  peopled  mostly  by  emigrants 
from,  and  tributary  in  its  commercial  relations,  to  the  North,  has 
always  been  more  allied,  m  sentiment  and  action,  to  the  North 
than  to  the  South.  The  contrast  here  exhibited  must  also  be  un- 
derstood with  the  qualification  that  it  is  only  an  attempt  to  delin- 
eate the  general  preponderance  of  character,  and  of  public  senti- 
ment of  each  section;  for  there  have  always  been  individual  in- 
stances, even  to  the  extent  of  sometimes  controlling  States,  wherein 
a  strict  construction  has  prevailed  at  the  North,  and  a  liberal  con- 
struction at  the  South.  Upon  such  subjects  as  the  alien  and  sedi- 
tion laws,  a  national  bank,  internal  improvements,  a  protective 
tariff,  the  acquisition  of  territory,  the  exercise  of  the  veto,  nullifi- 
cation direct  and  indirect  by  a  State,  the  right  of  secession,  and 
the  like,  some  diversity,  and  often  very  great  diversity  of  opinion 
was  to  be  found  in  each  section,  notwithstanding  the  general  pre- 
ponderance as  previously  portrayed.  The  difference  in  the  origi- 
nal organizations,  habits  of  thought,  theories  of  government,  and 
educational  bias,  in  different  persons  cf  each  section  was  sufficient 
to  produce  some  difference  of  opinion  and  action  on  most  if  not 
all  of  such  subjects,  notwithstanding  the  interest  of  each  section 
might  point  to  a  construction  different  from  that  of  the  other. 

At  last,  however,  a  subject  was  found  which,  in  the  end,  com- 
pletely enlisted  and  arrayed  the  controlling  sentiments  of  the  North 
on  one  side,  and  those  of  the  South  on  the  other;  and  that  was  the 


OUR    FEDERAL    RELATIONS.  9 

subject  of  the  institution  of  African  slavery  in  the  South,  existing 
in  fifteen  States  in  the  Union.  As  this  subject,  in  its  origin,  pro- 
gress and  results,  presents  one  of  the  most  remarkable  phenomenon 
of  any  age,  constitutes  a  new  era  in  the  history  of  America,  and 
will  likely  in  the  end  change  fundamentally  its  whole  system  of 
government,  it  may  be  well  now  to  take  our  reckoning,  so  as  to  as- 
certain the  theories  of  the  government,  as  evolved  by  the  other 
antecedent  subjects,  that  had  moved  it  into  action. 

The  following  propositions  may  be  regarded  as  sufficiently  pre- 
senting the  theory  of  the  strict  constructionist.  First,  the  Consti- 
tution of  the  United  States  is  a  written  compact,  entered  into  be- 
tween independent  sovereign  States,  by  which  they  formed  a  gen- 
eral government  of  delegated,  limited  powers,  and,  in  addition 
thereto,  bound  themselves  as  States  to  do  and  refrain  from  doing 
certain  things  therein  specified;  which  resulted  not  only  in  form- 
ing a  general  government  of  all  the  States  for  special  objects,  but 
also  in  regulating  a  whole  system  of  governments  in  federative 
union,  each  government,  state  and  federal  resting  upon  the  basis  of 
delegated  authority,  derived  from  the  people  of  each  State  as  a  sub- 
sisting sovereignty. 

Second.  From  this  it  follows,  that  if  the  general  government 
exceeded  its  delegated  authority,  or  used  the  power  delegated  to  it 
for  the  purpose  of  accomplishing  objects  not  contemplated  in  the 
scope  of  its  direct  action,  or  if  the  general  government,  to  the  prej- 
udice of  any  of  the  Stales,  failed  to  perform  its  approiiriate  func- 
tions to  the  extent  of  the  powers  delegated  to  preserve  the  equal 
rights  of  all  of  them;  or  if  the  States  themselves  failed  to  perform 
the  obligations  which  they  had  assumed  to  the  other  sister  States, 
by  the  stipulations  contained  in  the  Constitution  of  the  United 
States,  the  State  so  aggrieved,  in  the  exercise  of  an  inherent  right, 
never  delegated  or  parted  with,  might  withdraw  the  powers  which 
it  had  delegated  to  the  general  government,  as  contained  in  the 
Constitution  of  the  United  States,  and  thereby  dissolve  its  federa- 
tive connection  with  the  other  States,  leaving  the  Union  still  perfect 
as  to  those  States  that  chose  to  remain  in  it. 

Those  who  entertained  such  views  regarded  the  safety  of  the 
Union,  with  all  of  its  blessings  and  benefits,  to  depend  upon  the 
good  faith  of  the  States  in  performing  their  assumed  obligations, 
upon  confining  the  action  of  the  general  governmentwithin  its  cer- 
tain constitutional  limits,  and  in  avoiding  a  construction  that 
would  lead  to  the  exercise  of  doubtful  powers,  or  their  perversion 
to  objects  not  contemplated  in  the  Constitution. 

The  following  propositions  may  be  regarded  as  sufficiently  pre- 
senting the  theory  of  the  liberal  constructionists.     First:  The  Con- 
stitution of  the  United  States  is  a  social  compact,  entered  into  be- 
tween the  mass  of  i>eople  of  all  the  States,  forming  a  government  of 
limited  powers,  constituting  a  new  nation,  a  new  sovereignty,  carv- 


10  OUR    FEDERAL    RELATIONS. 

ed  out  of  the  sovereignty  of  the  several  States,  leaving  in  the  States 
a  portion  of  their  original  sovereignty,  upon  which  their  State  gov- 
ernments are  founded,  forming  an  indissoluble  union  of  States  part- 
ly confederative  and  partly  consolidated;  and  constituting,  with 
the  States  composing  the  union  what  is  sometimes  denominated  a 
compositive  government,  each  one  of  the  separate  States  having  a 
divided  sovereignty.  Second:  That  the  Constitution  furnishes  all 
of  the  peacable  remedies  for  grievances  in  the  ballot-box,  in  repre- 
sentation, in  the  decisions  of  the  Supreme  Court  of  the  United 
States,  and  in  a  change  of  the  Constitution.  Third:  That  outside 
and  above  the  Constitution,  is  the  right  of  revolution,  which  is 
simply  the  right  of  might.  While  some,  who  have  entertained  this 
theory  of  the  government,  have  been  strict  constructionists,  the 
liberal  constructionists  have  universally  entertained  it  as  the  cor- 
rect one. 

Amidst  the  galaxy  of  governments  thus  associated,  the  general 
government  has  always  been  most  conspicuous,  and  has  most  at- 
tracted the  attention  and  concern  of  the  people  of  all  the  States.  In- 
deed, its  measures  and  action  have  given  direction  to  the  political 
parties,  and  political  action  of  all  the  State  governments.  Liberal 
constructionists,  who  have  constantly  looked. upon  it  as  the  gov- 
ernment of  a  "nation,"  have  naturally  enough  fallen  into  the  habit 
of  looking  to  it  to  develop  the  resources  of  the  "nation,"  and  to 
provide  for  the  general  welfare;  and  therefore  have  sought  to  con- 
strue its  powers  to  be  adequate  to  those  ends,  either  by  direct  or 
indirect  action. 

The  North,  as  liberal  constructionists,  could  get  an  advantage 
over  the  South,  in  the  action  of  the  general  government,  by  the 
fixed  unchangeable  industrial  pursuits  of  each  section.  For  in- 
stance, the  South  could  not  manufacture  for  the  want  of  labor  and 
capital  to  be  devoted  to  it;  the  North  could  and  did.  The  gen- 
eral government  was  not  made  to  foster  and  build  up  manufacto- 
ries; still  it  was  caused  to  accomplish  that  very  object  by  the  indi- 
rection of  a  specific  protective  tariff"  upon  such  articles  of  com- 
merce as  were  manufactured  in  the  North.  It  was  not  made  to 
encourage  the  catching  and  importing  of  fish,  still  it  was  caused 
to  accomplish  that  very  object  by  the  indirection  of  a  fish  bounty, 
as  a  substitute  for  a  draw-back  on  the  salt  used  in  curing  the  fish 
that  were  exported.  It  was  not  made  to  relieve  the  monetary  dis- 
tresses of  commercial  communities  by  the  facilities  of  paper 
money,  still  it  was  caused  to  accomplish  that  object  by  the  indi- 
rection of  regulating  the  currency  through  a  national  bank.  It 
was  not  made  to  improve  agriculture  ;  still,  to  meet  the  wants  of 
improved  agriculture,  it  was  caused  to  attempt  that  project  by  cov- 
ertly attaching  an  agricultural  bureau  to  the  patent  office,  which 
has  matured  into  a  department.  The  same  may  be  said  of  vari- 
ous other  measures,  as  well  as  these,  which  the  liberal  construe- 


OUR    FEDERAL    RELATIONS.  IX 

tionists  were  continually  struggling  to  engraft  upon  the  govern- 
ment ;  and  which  the  strict  constructionists  were  ever  earnestly 
struggling  to  prevent.  Still,  this  was  the  extent  to  which  the  con- 
troversy and  conflict  had  reached  when  abolition  arose,  as  a  black 
speck  upon  the  Northern  horizon. 

From  the  year  1840,  the  abolitionists  had  put  up  a  candidate  of 
their  own  at  every  presidential  election.  This  was  done  to  secure 
and  preserve  a  separate  organization.  Birney  was  twice  their 
nominee,  then  Hale,  then  Van  Buren,  then,  in  1856,  Fremont. 
Under  none  of  these  was  there  a  perfect  alliance  between  aboli- 
tionism and  federalism,  which  was  so  necessary  to  attain  their 
objects.  Without  such  connection  abolitionism,  in  its  varied 
modifications  in  form  and  in  intensity,  was  wholly  powerless  to 
affect  slavery  within  the  States,  or  otherwise,  by  any  action  of  the 
general  government.  The  power  and  compass  of  intellect  neces- 
sary to  effect  their  union  all  over  the  North,  are  attributed  to  Mr. 
William  H.  Seward,  more  than  to  any  and  all  other  politicians  (it 
is  believed  deservedly  so),  and  it  found  its  full  public  authoritative 
expression  in  the  political  platform  under  which  Mr.  Lincoln  was 
elected  president. 

Some  remarkable  circumstances  attended  the  rise  and  progress 
of  this  sentiment  of  hostility  to  Southern  institutions,  which  deserve 
to  be  noticed.  It  first  took  firm  foot-hold  in  the  New  England 
States,  and  spread  westward  in  the  regions  most  remote  from  slav- 
ery, and  gradually  approached  the  Southern  States,  moving  south- 
ward. The  borders  of  the  States  of  Pennsylvania,  Ohio,  Indiana 
and  Illinois,  which  were  nearest  to,  in  contact  with,  and  the  best 
informed  about,  the  institution  of  slavery,  were  the  least  and  last 
arrayed  against  it. 

In  its  origin,  the  statesmen  of  all  parties  opposed  abolitionistn 
directly,  and  continued  to  repress  it  from  rising  into  public  action, 
by  all  of  the  party  machinery  which  they  could  bring  to  bear  upon 
it.  By  degrees  it  displaced  all  those  in  position  that  would  not 
yield  directly  or  indirectly  to  its  influences,  and  supplanted  them 
by  bringing  upon  the  stage  of  public  action  new  and  unheard  of 
actors,  either  partially  or  wholly  devoted  to  their  cause,  just  as 
they  might  hold  the  balance  of  power,  or  entire  control  in  their 
elections.  Under  its  influence,  all  of  the  old  standards  of  public 
sentiment  disappeared,  and  were  numbered  with  the  the  things  of 
the  past. 

The  Northern  idea  of  the  destiny  of  Northern  civilization  has 
also  had  much  to  do  in  all  this  struggle  for  supremacy.  It  is  the 
bold  conception  of  the  supreme  excellence  of  the  civilization 
planted  on  Plymouth  Rock  by  the  Puritan  fathers,  destined  to 
spread  itself,  first,  over  the  United  States,  then  over  the  American 
continent,  and  lastly,  to  revolutionize  the  world,  by  its  example 
and  power.     In  it  is  embraced  their  ideas  "^f  progressive  religion^ 


12  OUR    FEDERAL    RELATIONS. 

education,  society,  industry  and  government.  It  embodies  all  the 
pride  and  ambition  of  the  Northern  people,  both  as  a  universally 
inspiring  individual,  and  a  concentrated,  aggregated  national  sen- 
timent. Southern  slavery  stood  in  its  way,  resisting  its  progress, 
as  a  wall  of  stone  more  powerful  than  that  of  China,  erected  to 
withstand  the  despoiling  inroads  of  northern  barbarians.  That 
wall  has  fallen  before  the  angry  surges  of  its  overwhelming  tide. 

Such  are  some  of  the  proximate    causes    of  the  downfall  of  the 
institution    of  slavery   in    the    South.     If,  however,    we  look  back 
through    the   history   of  the    country,    we    will    find  more   remote 
causes,  which  fixed  its  future  destiny;     the  first  one  of  which  was 
the  concession  of  Virginia  of  the   northwestern   territory   to  the 
United  States,  accompanied  with  the  prohibition  of  slavery  there- 
in.    That  excluded  slavery  from  the  vast  region    of  fertile  country 
in  Ohio,  Indiana  and  Illinois,  into  which  the  slaves  of  the  Northern 
States  would  have   been   carried,    instead  of  being   pressed  down 
upon  the  South  for  a  market,   and  into  which  slaves  would  have 
been  carried  by  emigrants   from  Maryland,  Virginia    and   North 
Carolina  in  the  regular  tide  of  emigration  westward.     Most  of  that 
country  was  well  adapted  to  slave-labor  had  slaves  remained  cheap. 
While  their  importation  from  Africa  continued,  their   usual  price, 
in  the  towns   on  the   sea-board  where  they   were  landed,  was  one 
dollar  per  pound.     So,  too,  the  Missouri  compromise  in  1820,  ex- 
cluding slavery  in  all  of  the  territories  of  the  United  States  north 
of  36^  degrees,  north  latitude,  had   the   same   effect.     But  above 
all  other  of  those  causes  was   the  grant  of  the  power  to  Congress 
in  the  Constitution  of  the  United  States,  of  prohibiting  the  African 
slave  trade  after  the  year  1808.     That  was  the  prospective  surren- 
der of  slavery  as  a  permanent  institution    on    the  North  American 
continent.     It  made  slaves   become   dear;  so  that  they  could  only 
be  profitably  employed  in  the   mild   climate  of  the  South.     It  di- 
minished the  number  of  slave  owners.     That  diminution  continued 
relatively  to  increase  in  proportion  to  the  general  increase  of  pop- 
ulation in  the   United   States,  not  only  from  the  natural  increase, 
but  also  from  the  large  influx  of  white  emigrants  flowing  in  a  con- 
stant stream  from  Europe,  and  filling  up  the  Northern  and  Western 
States.     This   acquisition   by  immigration  continued    to    increase 
until  it  reached  a    fourth    of  a    million  annually.     The  South  ac- 
quired   but   few   immigrants    comparatively.       Hence    the    North 
greatly  outstripped  the  South  in  the  material  development  of  their 
country,  as  well  as  in  voting  population.     And   hence,    also,    they 
gradually  acquired  a  superiority    over  the    South  in  wealth,  and  in 
influence  in  the  councils  of  the  country. 

The  agitation  of  the  slavery  question  was  started  in  England, 
and  was  formally  commenced  in  America  by  the  formation  of  abo- 
lition societies  in  the  North.  As  early  as  1833,  a  great  Southern 
senator  (Mr.  Calhoun)  pointed  out  the  danger  of  recognizing,  in 


OUR    FEDERAL    RELATIONS.  I3 

the  general  government,  the  overwhelming  centralizing  powers 
then  so  popular,  and  warned  the  country  that  the  people  of  the 
North,  believing  slavery  to  be  a  sin,  and  a  great  political  as  well 
as  moral  evil,  would  feel  themselves  responsible  for  what  the  gov- 
ernment, with  such  powers,  through  their  vote  and  influence,  might 
reform;  and  would  petition  Congress  to  abolish  slavery.  In  1837, 
only  four  years  later,  such  petitions  as  he  had  anticipated  were 
sent  in  great  numbers  to  both  houses  of  Congress,  from  the  aboli- 
tion sections  of  the  Northern  States.  He  resisted  their  reception 
upon  the  ground  that,  as  Congress  had  no  constitutional  right  to 
act  upon  them,  it  was  no  violation  of  the  right  of  petition  to  reject 
them;  and  that  the  abolitionist  only  at  that  time  sought  to  have 
them  received,  in  order  to  make  Congress  the  central  arena  of  the 
slavery  agitation.  Many  statesmen,  even  from  the  South,  to  defend 
the  constitutional  right  of  petition,  took  the  ground  that  the  peti- 
tions should  be  received,  notwithstanding  Congress  had  no  power 
to  grant  the  relief  prayed  for  in  them,  A  medium  course  was 
adopted,  of  receiving  the  petitions,  and  of  laying  them  on  the 
table,  such  action  not  requiring  any  further  notice  of  them.  This 
controversy  was  itself  sufficient  to  foist  the  subject  into  public 
notoriety,  and  raise  it  from  the  arena,  where  it  had  been  previously 
agitated,  the  societies,  the  pulpit,  the  schools,  the  social  circle,  and 
the  press,  of  the  North,  into  the  great  political  arena  of  the  halls 
of  the  National  Congress.  And  that  was  the  object  of  the  peti- 
tioners. During  the  discussions  upon  this  subject,  that  far-sighted 
statesman  made  some  remarkable  predictions.  In  his  place  in  the 
Senate  of  the  United  States,  he  said  :  "As  widely  as  this  incendi- 
ary spirit  has  spread,  it  has  not  yet  infected  this  body,  nor  the 
great  mass  of  the  intelligent  and  business  portion  of  the  North; 
but  unless  it  is  speedily  stopped,  it  will  spread  and  work  upward 
until  it  brings  the  two  great  sections  of  the  Union  into  deadly  con- 
flict  I  look  not  for  aid  to  this   government  or  to  the 

other  States;  not  but  that  there  are  kind  feelings  towards  us  on  the 
part  of  the  great  body  of  non-slave-holding  States;  but  as  kind  as 
their  feelings  may  be,  we  may  rest  assured  that  no  political  party 
in  these  States  will  risk  its  ascendency  for  our  safety.  If  we  do 
not  defend  ourselves,  none  will  defend  us;  if  we  yield,  we  will  be 
more  and  more  oppressed  as  we  recede;  and  if  we  submit,  we  will 
be  trampled  under  foot.  Be  assured  that  emancipation  itself  would 
not  satisfy  these  fanatics;  that  gained,  the  next  step  would  be  to 
raise  the  negroes  to  a  social  and  political  equality  with  the  whites; 
and  that  being  effected,  we  would  soon  find  the  present  condition 
of  the  two  races  reversed.  They  and  their  Northern  allies  would 
be  the  masters  and  we  the  slaves.  .  .  .  Of  all  passions,  avarice 
is  the  most  blind  and  compromising,  the  last  to  see  and  the  first 
to  yield  to  danger.  I  dare  not  hope  that  anything  I  can  say  will 
arouse  the  South  to  a  due  sense  of  danger.     I  fear  it  to  be  beyond 


k 


14  OUR    FEDERAL    RELATIONS. 

the  power  of  mortal  voice   to  awaken  it  in  time  from   the  fatal 
security  into  which  it  has  fallen." 

Had  he  lived  to  this  day,  to  have  portrayed  in  general  terms  the 
facts  of  history  in  connection  with  that  subject,  he  could  not  have 
done  it  better  than  he  then  did  in  advance  of  their  having  hap- 
pened. Yet,  so  improbable  and  far-fetched  were  they  then  re- 
garded generally,  in  the  South,  as  well  as  in  the  North,  that  they 
attached  to  him,  for  a  time,  the  designation  of  "the  great  alarm- 
ist;" and  to  prove  the  truth  of  the  imputation,  letters  of  inquiry 
were  written  to,  and  answers  elicited  from,  many  of  the  distinguished 
citizens  and  statesmen  of  the  North,  in  which  it  was  represented 
to  the  public,  that  the  abolitionists,  as  a  class,  were  insignificant 
in  numbers,  and  disreputable  in  character;  and  that  no  serious 
danger  was  to  be  apprehended  from  their  efforts  or  influence. 
Such,  indeed,  was  the  general  opinion  of  the  mass  of  intelligent 
people  of  all  parties  then  in  the  United  States.  Still,  there  was, 
at  that  very  time,  forming  in  Northern  society  a  widespread,  strong, 
deep  current  of  anti-slavery  sentiment,  not  fully  appreciable  by  the 
statesmen  who  were  being  wafted  along  with  and  by  the  waves  of 
the  surface.  The  rattle  of  the  brisk  shower  upon  the  house-top 
concealed  the  distant  roar  of  the  coming  storm. 

It  is  true  that  the  abolition  societies  were  held  in  abhorrence 
and  contempt  at  first.  Those  who  attempted  to  speak  in  public, 
in  favor  of  the  agitation  of  the  subject  of  slavery  as  a  political 
question,  were  often  subjected  in  the  North,  to  maltreatment 
amounting  even  to  violence.  In  some  places  their  printing  presses 
were  destroyed.  Public  opinion  seemed,  from  all  outward  demon- 
strations, to  be  arrayed  against  them  as  common  disturbers  of  the 
public  peace,  and  as  dangerous  disorganizers.  They  seemed  to 
work  blindly,  without  any  attainable  object.  Slavery  was  sanc- 
tioned by  the  law  of  nations,  had  existed  immemorially,  had  been 
introduced  into  the  American  colonies  and  States,  without  any 
special  enactment  for  that  purpose,  upon  the  general  recognized 
principle,  that  slaves  constituted  property,  as  well  as  any  other 
useful  thing;  and  slaves  might  be  held  in  any  state  or  nation, 
where  slavery  was  not  specially  prohibited  by  its  own  local  law. 
In  addition  to  this,  all  of  the  States  except  Massachusetts  had 
slaves  when  the  Constitution  was  formed;  and  that  Constitution 
not  only  recognized  slavery  in  the  States,  by  their  partial  repre- 
sentation in  Congress,  but  protected  it  by  requiring  fugitives  slaves 
to  be  surrendered  by  the  several  States  in  which  they  might  be 
found.  Fifteen  of  those  States  still  had  slaves  amounting,  in  the 
aggregate,  to  the  number  then  perhaps  of  over  four  millions,  by 
whose  labor  the  great  importing  staples  of  the  country  were  pro- 
duced, that  had  added  and  continued  to  add  to  the  prosperity  of 
the  whole  county. 

The  Southern  people  were  not  dissatisfied  with  the  institution  of 


OUR    FEDERAL    RELATIONS.  15 

slavery;  and  if  they  had  been,  they  saw  no  means  of  relieving 
themselves  of  it  without  producing  greater  evils  to  themselves  and 
to  the  slaves.  Notwithstanding  all  these  considerations,  which 
made  the  attempt  at  abolition  appear  to  be  futile  in  the  ex- 
treme— the  mere  wild  ravings  of  a  crazy  brain — these  societies 
were  formed  for  that  purpose; — not  in  the  South  where  the  evil 
existed,  if  an  evil  it  was,  but  in  the  North,  where  there  was  no  such 
thing.  The  incidental  questions  pertaining  to  slavery  had  fre- 
quently been  discussed  before  in  the  convention  as  to  its  represen- 
tation and  protection,  and  in  Congress  afterwards  as  lo  the  slave 
trade;  and  also  upon  the  admission  of  Missouri  as  a  State  in  1820, 
as  to  its  prohibition  in  the  territories  north  of  a  line  west  of  the 
southern  boundary  of  that  State,  commonly  known  as  the  "Mis- 
souri Compromise."  These  discussions  were  engaged  in  by  states- 
men seeking  to  regulate  public  affairs  in  relation  to  this  institution, 
according  to  what  they  considered  the  interests  of  their  own  re- 
spective States  or  sections,  and  not  in  direct  hostility  to  it.  They 
understood  and  acted  upon  their  responsibility  as  public  men, 
with  reference  to  what  they  regarded  as  the  proper  province  and 
constitutional  powers  of  the  government.  Not  so,  however,  with 
the  leaders  and  members  of  these  societies.  They  were,  for  the 
most  part,  private  persons,  having  no  connection  with  the  govern- 
ment other  than  as  private  citizens,  not  unfrequently  including 
women  as  well  as  men.  They  were  the  foam  upon  the  surface  of 
the  simmering  cauldron  of  the  Northern  mind,  heated  by  the  uni- 
versal religious  sentiment  that  slavery  was  a  sin,  and  would  be  a 
national  curse,  for  which  they  were  in  part  responsible.  This 
sentiment  had  been  forming  for  half  a  century  or  more,  and 
pervaded  all  classes.  The  preachers  of  the  North,  who  have  real- 
ly led  in  every  political  excitement  there,  from  the  landing  of  the 
Puritan  Pilgrims  upon  Plymouth  Rock,  fostered  it  in  the  family, 
preached  it  in  their  pulpits,  and  made  it  the  fashionable  and  pop- 
ular doctrine  of  all  the  churches;  pressed  it  into  the  schools^  and 
filled  the  press  with  it — both  secular  and  religious. 

It  was  not  a  new  sentiment  just  started  by  these  abolition  socie- 
ties, it  was  then  old.  What  was  then  new  about  it  was  the  elYort 
to  raise  the  subject  of  slavery  from  its  moral,  social  and  religious 
sphere,  in  which  they  had  so  long  confined  it,  into  the  sphere  of 
political  action.  There  was  every  imaginable  variety  of  belief  as 
to  when  or  how  this  sentiment  could  or  could  not,  be  applied 
to  the  action  of  government;  but  the  sentiment  itself  was  cathoHc 
and  orthodox.  Opposition  to  it*  was  schismatic  and  heretical. 
Politicians  of  all  the  old  parties  were  careful  to  thank  their  God 
that  they  lived  in  a  State  free  from  the  stain  and  sin  of  slavery, 
while  they  were  pouring  out  their  contemptuous  ridicule  and  abuse 
upon  the  despicable  abolitionists  and  their  societies.  But  the 
arguments  in  the  pulpit  were  all  on  one  side.     He  was  safe  at  his 


l6  OUR    FEDERAL    RELATIONS. 

sacred  desk — safe  from  ridicule,  safe  from  answer,  safe  from  oppo- 
sition, in  all  species  of  popular  orthodoxy.  He  did  not  assume  to 
meddle  in  politics;  that  was  below  his  calling;  but  he  told  his 
hearers  that  the  institutions  of  fifteen  Southern  States  were  sinful; 
and  prayed  to  save  them  from  the  national  curse. 

The  Northern  politician  told  the  people  that  these  United  States 
constituted  one  nation;  and  that  the  great  principle  that  underlay 
all  American  governments,  was,  that  the  people  rule — the  majority 
had  a  right  to  govern.  The  conscientious  Christian,  guided  by 
these  teachings,  and  aroused  to  a  full  sense  of  their  import,  could 
not  and  would  not  understand  why  such  a  sin  could  not  be  put 
away,  and  the  national  curse  be  averted.  If  no  one  poi.nted  out 
the  way,  he  blazed  out  one  of  his  own,  or  followed  any  one  who 
would  lead  in  that  direction. 

By  degrees  it  began  to  work  itself  up  into  political  action,  first 
in  small  communities,  then  in  larger  sections  of  country, — grad- 
ually growing  all  the  time.  It  became  the  one  engrossing  idea  of 
those  who  espoused  it,  as  a  polilical  idea,  which  like  Aaron's  rod, 
swallowed  up  all  the  rest.  Its  adherents  forsook  every  other  poli- 
tical party;  or  would  act  with  any  other  political  party,  to  gain  in- 
fluence or  to  accomplish  an  object.  Very  soon,  in  many  places  in 
the  North,  they  were  able  to  hold  the  balance  of  power  between 
the  two  great  national  parties — Whigs  and  Democrats.  This  was 
their  great  lever  power;  and  they  plied  it  well  and  without  ceasing, 
wherever  and  whenever  they  could.  By  it,  they  got  control,  first, 
of  counties  and  sections  of  States,  and  finally,  of  whole  States; 
and  by  it,  eventually  they  crushed  out  and  overwhelmed  all  of  the 
other  parties,  leaving  opposed  to  them  only  a  remnant, — and  that 
a  disorganized  remnant — of  the  Democratic  party. 

Before  they  could  enlist  the  States  in  the  cause  of  protecting 
fugitive  slaves  from  capture  by  their  masters  in  the  free  States,  they 
had  organized  bodies  of  men  who  concealed  them,  or  privately 
conveyed  them  away  out  of  his  reach;  and,  as  public  opinion  be- 
came more  in  their  favor,  they  raised  mobs  for  the  protection  of 
fugitive  slaves.  This  induced  Congress  to  pass  more  stringent 
laws  for  the  capture  of  slaves  by  their  masters,  in  the  free  States, 
in  pursuance  to  the  Constitution  of  the  United  States.  That  but 
provoked  them  to  greater  and  bolder  efforts;  and  finally  the  North- 
ern States  were  induced  to  pass  laws  which  made  it  a  penal  offense, 
and  in  some  cases  a  penitentiary  crime,  for  any  one  to  aid  the 
master  in  the  capture  of  them,  thereby,  in  effect,  nullifying  a  plain 
law  of  Congress,  and  abrogating  a  plain  provision  of  the  Consti- 
tution, which  required  every  State  to  deliver  up  fugitive  slaves 
escaping  into  its  territory.  Thus,  by  the  force  of  public  opinion, 
and  the  aid  of  the  State  authorities  arrayed  in  their  favor,  they 
were  enabled   to  set  at  naught  the  action  of  the  general  govern- 


OUR    FEDERAL   RELATIONS.  1 7 

ment  in  support  of  the  constitutional  rights  of  the  Southern  peo- 
ple. 

They  must  aspire  higher  still.  Having  subjected  the  Northern 
States  to  their  will,  they  struck  for  the  supremacy  in  the  national 
council.  The  exclusion  of  slavery  from  the  territories  and  from 
the  District  of  Columbia,  became  the  favorite  subjects  of  political 
agitation.  The  war  with  Mexico,  superinduced  by  the  annexation 
of  Texas  and  the  acquisition  of  territory  at  its  termination,  furnished 
a  fair  field  for  the  free-soil  agitators  in  Congress.  Through  their 
influence  California  was  slipped  into  the  Union  as  a  free  State, 
without  having  been  organized  as  a  territory;  such  was  their  power 
while  yet  in  the  minority  in  Congress.  Congress,  however,  after  a 
great  struggle,  determined  against  them,  and  established  the  law 
that  the  citizens -of  the  Southern  States  had  the  constitutional  right 
to  carry  slaves  into  the  territories,  thereby  repealing  the  rule  made 
in  the  Missouri  Compromise.  The  Supreme  Court  decided  against 
them,  that  a  free  negro  of  African  descent  was  not  a  citizen  of  the 
United  States.  Nothing  daunted,  they  denounced  the  Supreme 
Court,  and  struggled  on  in  opposition  to  Congress.  Massachusetts 
chartered  a  company,  with  a  capital  of  five  millions  of  dollars, 
styled  "The  Immigration  Aid  Society";  and  by  its  instrumentality 
the  territory  of  Kansas,  west  of  Missouri,  was  filled  with  abolition 
immigrants,  settled  on  the  land  of  the  company,  and  furnished 
with  arras  to  protect  themselves,  ostensibly  against  Southern  set- 
tlers. An  irregular  war  ensued,  which  resulted  in  favor  of  the 
North,  and  which  resulted  in  making  Kansas  a  free  State.  New 
Mexico  was  taken  possession  of  and  held  by  the  United  States,  as 
part  of  Texas,  in  the  Mexican  war.  When  peace  was  made,  Texas 
claimed  it  as  part  of  its  territory.  The  North  clamored  for  New 
Mexico  as  free  territory,  and  disputed  our  title.  The  federal  gov- 
ernment hesitated  and  prevaricated,  holding  it  under  military  rule. 
The  people  of  Texas  were  aroused  with  indignation,  and  were  ready 
to  go  to  any  extremes  to  protect  their  claim.  Its  legislature  formed 
a  judicial  district  in  New  Mexico,  and  elected  a  district  judge, 
(Spruce  M.  Baird,  then  of  Nacogdoches)  who  went  to  Santa  Fe  to 
execute  the  duties  of  his  office,  and  was  uot  allowed  to  do  it  by 
the  military  autorities  then  in  control  of  the  country,  Congress 
passed  a  series  of  measures  in  1850,  commonly  called  the  "Com- 
promise Measures,"  one  of  which  (called  the  Pierce  bill)  provided 
for  the  surrender  of  New  Mexico,  by  a  vote  of  the  people  of  Texas, 
for  the  consideration  of  ten  millions  of  dollars,  one  half  of  which 
was  to  be  retained  under  the  control  ot  Congress  for  the  payment 
of  the  revolutionary  debt  of  Texas.  Another  one  of  these  meas- 
ures abolished  the  slave  trade  in  the  District  of  Columbia.  .'\n- 
other  one  of  them  settled  the  constitutional  right  of  citizens  to 
be  protected  in  their  slave  properly  in  the  territories.  This,  how- 
ever, was  couched  in  such  language  of  dubious  import,  as  that  the 


l8  OUR    FEDERAL    RELATIONS. 

North  construed  it  to  give  o*  admit  of  the  right  of  the  people  in 
the  territory,  under  a  territorial  government,  to  exclade  slavery; 
and  the  South  construed  it  to  mean  that  the  people  of  a  territory, 
only  when  they  came  to  form  a  constitution  as  a  State,  could  ex- 
clude slavery.  This  dubious  language  was  adopted  on  purpose  to 
produce  an  agreement  apparently,  and  to  allay  the  pending  excite- 
ment, when  in  fact,  they  were  not  agreed  in  Congress,  and  could 
not  have  agreed  to  either  one  of  the  constructions,  if  the  language 
used  had  been  unequivocal.  It  was  a  subterfuge  upon  an  emergen- 
cy. Like  all  other  dodges  of  the  main  issue,  it  swelled  the  tide  of 
public  opinion  in  the  North  against  the  institutions  of  the  South. 
And  that  subterfuge  caused  a  sectional  division  of  the  democratic 
party,  which  secured  the  election  of  Mr.  Lincoln  as  President  in 
i860.  Mr.  Douglas  was  the  candidate  for  President  representing 
the  Northern  Democratic  construction.  Mr.  Brackenridge  was  the 
candidate  for  President  representing  the  Southern  Democratic  con- 
struction. Mr.  Bell  was  the  candidate  for  President  representing 
nothing,  under  the  laconic  platform,  "the  Constitution,  Law  and 
Order."  Mr.  Lincoln  was  the  candidate  for  President,  represent- 
ing federalism  and  abolitionism,  combined  for  the  first  time  in 
harmony  and  co-operation  under  a  new  name,  styled  the  "Repub- 
lican party,"  combining  the  great  positive,  aggressive  and  revolu- 
tionary idea,  that  the  general  government  could  and  must  be  used 
to  place  slavery  upon  a  sure  basis  of  extinction;  that  it  was  neces- 
sary to  the  salvation  of  the  North  itself  under  the  doctrine,  the 
expression  of  which  he  was  said  to  have  been  the  author,  of  "the 
irrepressible  conflict  between  free  and  slave  labor,"  in  which  was 
embraced  the  sentiment  so  terrible  to  the  North,  "that  all  of  the 
States  must  be  free,  or  all  of  the  States  must  have  slaves."  This 
was  a  happy  hit  in  language, — not  for  its  truthfulness,  but  for  its 
availability  to  alarm  and  unite  the  North. 

This  leading,  positive  idea  of  ultimately  freeing  the  slaves  of  the 
South,  was  stimulated  and  intensified  in  the  North,  by  being  a  part 
of  the  religion  of  the  people.  It  was  fostered  also  by  a  great  many 
popular  kindred  or  auxiliary  ideas, — such  as  universal  liberty, 
universal  equality,  the  unity  of  the  races,  and  the  susceptibility  of 
all  of  them  to  political  and  social  equality  by  education;  the 
respectability  of  labor;  the  laborer  is  worthy  of  his  hire;  the  pub- 
lic lands  are  the  heritage  of  the  white  man,  and  should  not  be  oc- 
cupied by  slaves  to  his  exclusion;  jealousy  and  envy  towards  the 
Southerner,  whose  wealth  consisted  mainly  in  his  slaves;  the  im- 
puted barbarity  of  the  slave  owners,  drawn  from  an  occasional 
and  exceptional  instance  of  cruelty,  heralded  in  writings  and  pic- 
tures so  as  to  excite  the  sympathy  and  horror  of  the  masses. 
These  and  many  more  such,  served  to  inflame  the  Northern  mind 
with  the  strongest,  most  active,  and  all-absorbing  sentiment  that 
ever  possessed  the  American  mind.     It  was   equaled  only  by  that 


b 


OUR    FEDERAL    RELATIONS.  I9 

which  pervaded  all  Europe,  when  Peter  the  Hermit  preached  the 
first  crusade,  to  induce  Christendom  to  take  posession  of  the  Holy- 
Land  by  arms. 

Positive,  affirmative  ideas  always  have  an  advantage,  in  popular 
governments,  over  negative,  defensive  ideas.  But  when  inflated 
and  inflamed  by  religion,  sentiment,  and  prejudice,  into  a  fanatical 
enthusiasm,  it  is  seldom  resisted.  By  such  means  was  Abraham 
Lincoln  elected  President  of  the  United  States,  by  the  votes  of  the 
Northern  States,  without  a  single  electoral  vote  in  his  favor  from 
the  South,  and  by  a  minority  of  the  voters  in  the  United  States. 

During  all  this  agitation  of  slavery  in  the  North,  the  minds  of 
the  people  of  the  South  were  gradually  undergoing  a  change,  both 
on  the  right  of  sovereignty  of  the  States,  and  on  the  merits  of 
slavery  as  a  social  institution. 

Before  it  commenced  the  doctrine  of  State  sovereignty  was  far 
from  being  a  universal  sentiment  in  the  South.  Nor  was  slavery 
universally  approved,  as  many  persons  had  voluntarily  manumitted 
slaves,  by  which  there  were  a  considerable  number  of  free  negroes 
in  the  Southern  States. 

The  anti-slavery  agitation  in  the  North  was  looked  upon  by  the 
Southern  people  as  an  officious  intermeddling  in  their  affairs  by 
people  who  had  no  right  or  interest  in  the  matter.  That  prompted 
them  to  a  more  general  acquiescence  in  the  political  doctrines 
that  afforded  protection  to  their  peculiar  interest,  as  well  as  to  a 
more  general  assent  to  the  merits  of  slavery  as  a  social  institution, 
just  in  proportion  to  the  progress  and  influence  of  the  anti-slavery 
movement  in  the  Northern  States.  Hence  the  defense  of  slavery 
became  general,  even  by  most  persons  who  did  not  own  slaves,  as 
well  as  by  those  who  did.  They  considered  the  actions  of  the 
Northern  States  as  unconstitutional  and  unjust  in  the  highest  degree, 
as  calculated  to  injure  their  rightful  property,  and  to  e.xcite  servile 
insurrections.  On  the  northern  borders  of  the  slave  States,  slave 
property  had  already  become  subject  to  depredations;  and  the 
laws  of  Congress  furnished  no  adequate  remedy;  and  the  Northern 
States  being  placed  in  hostility  to  the  institution,  a  most  resentful 
feeling  was  engendered  in  the  minds  of  the  people  of  the  Southern 
States  generally. 

The  strong  feeling  of  antagonism  between  the  two  sections, 
North  and  South,  was  reached  in  twenty  years  after  the  anti  slavery 
agitation  began  to  have  a  practical  influence  in  public  affairs, 
though  the  feeling  was  not  at  that  stage  universal  in  either  section. 
It,  however,  continued  to  increase  in  intensity,  and  became  more 
general  with  the  occurrence  of  every  public  event  upon  which  it 
could  be  brought  to  bear.  Already  had  the  Northern  States  claimed 
that  the  acts  of  Congress  to  aid  slave  owners  in  tlie  capture  of  their 
fugitive  slaves  were  unconstitutional,  and  therefore  were  not  bind- 
ing upon  them.     The  principle  was  assumed  that  a  right  of  prop- 


20  OUR    FEDERAL    RELATIONS. 

erty  could  not  be  vested  in  human  beings  as  slaves,  notwithstand- 
ing it  had  been  decided  by  the  Supreme  Court  of  the  United 
States  that  slavery  was  lawful  by  the  law  of  nations,  except  where 
it  was  prohibited  locally. 

By  the  great  struggle  in  the  presidential  election  in  i860,  the 
controlling  public  sentiment  in  each  section  reached  its  extreme 
culmination,  that  made  them  two  distinct  people,  both  in  political 
doctrines  and  in  regard  to  slavery  and  other  material  interests. 
In  the  North,  it  was  settled  that  the  States  united  constituted  a  na- 
tion, the  life  of  which  in  its  integrity  the  general  government  had 
a  right  to  preserve;  and  that  its  powers  could  and  should  be  right- 
fully used  in  the  discouragement  of  slavery  in  any  and  every  way 
practicable,  except  only  by  a  direct  emancipation  of  slaves  within 
the  States;  and  that  the  Northern  States  were  justified  in  resisting 
or  evading  the  laws  of  Congress  designed  to  aid  the  slave  holders 
in  the  capture  of  their  slaves-  that  fled  to  the  free  States.  In  the 
South  it  was  settled  that  the  North  had  placed  itself  in  hostile 
enmity  to  their  domestic  institutions;  and  that,  having  not  been 
able  to  defend  them  while  the  general  federal  government  was  act- 
ing in  their  favor,  it  would  be  vain  to  attempt  their  defense  after 
the  government  should  be  in  control  of  their  political  enemies. 
They  considered  themselves  warranted  in  that  conclusion  by  the 
fdct  that  before  that  election  occurred,  slavery  had,  in  effect,  been 
practically  excluded  from  all  of  the  territories  in  which  it  could 
be  made  useful,  and  that  therefore  there  could  be  no  motive  for 
the  further  agitation  in  the  North  other  than  to  wield  the  govern- 
ment of  the  United  States  against  slavery  within  the  slave  States. 
It  was  settled  also  that,  under  the  doctrine  of  federalism  and  na- 
tional supremacy  over  the  States,  dominant  in  the  North,  their 
other  peculiar  interests,  as  States  of  the  Union,  could  not  be  equally 
protected.  And  further,  it  was  settled  that  the  States  retained  their 
sovereignty,  and  that  they  had  the  right  to  withdraw  from  the  gov- 
ernment of  the  United  States  the  powers  delegated  by  them  to  that 
government,  and  form  another  central  government  based  on  prin- 
ciples consistent  with  their  views  of  what  the  United  States  was 
originally,  and  not  inimical  to  their  domestic  institutions  and  other 
material  interests.  Their  effort  to  do  this,  although  done  in  a 
peaceful  manner,  brought  into  active  operation  the  assumed  right 
of  the  general  government,  under  the  control  of  the  Northern  sen- 
timent, to  prevent  the  withdrawal,  and  thereby  "to  preserve  the 
life  of  the  nation";  and  that  produced  the  great  civil  war  between 
the  States. 


OUR    FEDERAL    RELATIONS.  21 


THE  IMPENDING  CRISIS. 


SPEECH  OF  JUDGE  O.  M.  ROBERTS,  OF  THE  SUPREME  COURT  OF  TEXAS, 
AT  THE  CAPITOL,  ON  DECEMBER  I,  1860. 


Hon.  O.  M.  Roberts: 

Sir: — Ihe  undersigned  having  had  the  pleasure  of  listening  to 
your  able  and  instructive  address,  delivered  in  the  Capitol  building 
on- Saturday  last,  most  earnestly  request  a  copy  of  the  same  for 
publication. 

Signed,  James  H.  Fry,  Clement  R.  Johns,  James  E.  Rector,  J. 
M.  Claiborne,  Jno.  A.  Green,  C.  R.  Johns,  Jr.,  George  M.  Flournoy, 
J.  Q.  St.  Clair,  C.  H.  Randolph,  George  J.  Durham,  H.  W.  Raglin, 
Bird  Holland,  John  B.  Costa,  E.  Rust,  R.  D.  Harris,  Wm.  Byrd, 
A.  R.  Crozier,  Geo.  W.  White,  Darius  Marsh,  M.  C.  Burditt,  H.  J. 
Burditt,  H.  McBride,  T.  J.  Hill,  E.  P.  Hill,  Geo.  W.  Bowers,  Wm. 
Rust,  A.  F.  Logan,  James  P.  Neal,  W.  S.  Oldham,  Ed.  Clark. 

[There  were  three  thousand  copies  of  this  address  published  and 
circulated  all  over  the  State.  As  an  evidence  of  its  favorable  re- 
ception by  the  people,  O.  M.  Roberts  was  elected  president  of  the 
Secession  Convention  by  acclamation,  in  January,  1861.  Its  pub- 
lication now  may  enable  the  young  men  of  to-day  to  better  under- 
stand how  our  Federal  relations  were  regarded  by  public  men  in 
i860,  after  the  election  of  Abraham  Lincoln,  President  of  the 
United  States.] 


Fellow-Citizens: 

A  public  expression  of  my  views  in  reference  to  the  impending 
crisis,  has  been  solicited  by  gentlemen  of  all  parties.  It  is  a  time 
for  all  men  to  speak  out.  I  shall  not  hesitate  to  express  my  opin- 
ions freely. 

The  revolutionary  party  of  the  North,  have  for  years  past,  ad- 
vanced step  by  step,  towards  the  destruction  of  our  domestic  in- 
stitutions. It  has  enlisted  State  after  State  in  its  cause,  and  now, 
by  an  overwhelming  sectional  vote,  has  elected  a  President  of  the 
United  States.  The  purpose  is,  to  wield  the  executive"  arm  of  the 
Federal  Government,  for  the  accomplishment  of  its  object. 

An  indignant  and  outraged   people   throughout  the  whole  South, 


2  2  OUR    FEDERAL    RELATIONS. 

at  once  set  themselves  in  action.  Our  sister  Southern  States  are 
assembling  their  collectire  wisdom  in  Legislatures,  and  in  conven- 
tions of  the  people,  to  devise  measures,  singly  or  together,  to  pro- 
tect their  reserved  rights.  Before  the  4th  of  March  next,  South 
Carolina  will  declare  herself  out  of  the  Union.  Georgia,  Alabama, 
.Mississippi,  Louisiana  aud  Arkansas,  are  all  moving,  and  will  prob- 
ably follow  her  example,  or  place  themselves  in  the  attitude  of 
readiness  to  do  so  at  pleasure.  Virginia  and  other  States  are  arm- 
ing and  disciplining  their  people.  A  single  federal  gun  aimed  at 
a  withdrawing  State,  will  kindle  a  blaze  of  war  from  the  Potomac 
to  the  Rio  Grande.  The  "Lone  Star"  flag  now  floats  over  every 
city,  town,  village  and  hamlet  throughout  all  Texas. 

What  shall  Texas  do?  As  one  of  her  citizens,  I  am  for  State  ac- 
tion,— action  by  the  constituted  authorities  of  the  State, — action 
singly  and  conjointly  with  other  Southern  States,  until  we  are  made 
secure  in  our  rights,  liberties  and  honor. 

Such  action  should  be  prompt,  calm,  deliberate,  harmonious  and 
well  directed,  so  as  to  secure  the  desired  object,  and  at  the  same 
time  preserve  peace  and  social  order  among  ourselves.  Our  alle- 
giance is  due  to  both  state  and  federal  governments,  because  the 
sovereign  power  of  Texas,  at  the  time  of  our  annexation  to  the  gen- 
eral government,  so  ordained  it,  as  its  will.  And  until  the  same 
sovereign  power  shall  be  brought  into  action,  and  declare  a  differ- 
ent will,  it  is  our  duty  as  citizens,  to  make  ourselves  subservient  to 
the  one  as  well  as  the  other. 

What  action  then  may  the  people  rightfully  adopt,  in  so  serious 
a  crisis?  The  legislature  being  convened  by  the  governor,  may  de- 
clare the  rights  of  the  State,  and  the  infraction  of  those  rights,  so 
as  to  call  the  attention  of  all  the  States  and  federal  government,  to 
the  grievances  complained  of,  in  order  to  effect  a  remedy,  if  pos- 
sible, through  public  opinion  and  the  ballot-box;  and  it  may  pro- 
vide the  means  and  measures,  within  its  constitutional  power,  to 
enable  the  State  to  protect  its  people  and  their  rights  from  unau- 
thorized aggression.  This  is  what  Virginia  and  Kentucky  did  in 
1798  and  '99.  They  presented  an  issue,  and  the  verdict  of  the 
American  people  upon  it,  prostrated  federalisiji  from  its  seat  of 
power,  and  consigned  it  to  the  tomb,  for  a  time. 

The  legislature  may  make  application  to  Congress  to  call  a  con- 
vention of  all  the  States  to  propose  amendments  of  the  Constitu- 
tion. (Con,  of  U.  S.,  Art.  V.)  Could  we  hope  to  get  two-thirds  of 
the  States  to  join  us  in  a  call  of  a  general  convention,  or  otherwise 
two-thirds  of  both  houses  of  Congress  to  propose  amendments,  and 
then  a  ratification  of  the  amendments  so  proposed,  we  might  hope 
to  obtain  more  effectual  guarantees  for  the  fulfillment  of  the  con- 
stitutional compact. 

The  legislature  may  also  provide  for  a  convention  of  delegates 
representing  the  people  in  their  sovereign  capacity.     Or  such  con- 


OUR    FEDERAL    RELATIONS.  23: 

vention  may  be  assembled  without  a  call  from  the  legislature,  or 
from  any  department  of  the  State  government,  by  concert  among 
the  people  themselves.  Such  has  been  the  mode  of  making  the 
constitutions  of  several  of  the  States,  (Tennessee,  Michigan,  Arkan- 
sas and  New  York,)  which  were  acquiesced  in  by  the  previously 
constituted  authorities,  and  went  quietly  and  peaceably  into  opera- 
tion. There  is  no  authority  specially  delegated  to  any  department 
of  the  existing  government  to  call  into  action  this  high  power  of 
the  people.  Nor  is  its  exercise  made  dependent  upon  any  will  but 
its  own.  Nor  is  there  any  invariably  established  mode  of  evidenc- 
ing the  sovereign  will,  so  that  it  may  be  recognized  as  the  funda- 
mental law  of  the  land,  otherwise  than  by  its  being  declared,  and 
be  put  in  force  by  general  acquiescence,  and  by  the  power  of  the 
the  people.  Or,  in  other  words,  there  is,  and  can  be  no  artificial 
test  devised,  for  ascertaining  when  the  controlling  intellectual  and 
physical  strength  of  a  people  has  manifested  its  will  in  any  partic- 
ular instance.  Should  the  pre-existing  government  fail  to  recog- 
nize the  act  of  a  convention,  as  declaring  the  will  of  the  sovereign 
power  (because  it  did  not  represent  the  people  fairly,  or  for  any 
other  reason  that  might  be  assigned),  there  might  be  a  conflct  be- 
tween the  old  and  the  new  government;  which  would  only  be  de- 
cided by  force.  Being  a  political  question,  courts  of  judicature 
are  not  competent  to  decide  it.  Hence,  it  is  important,  when 
practicable,  that  the  legislature  of  the  State  should  take  the  initia- 
tory steps  for  regularly  ascertaining  the  will  of  the  people.  If  both 
bodies  should  be  in  session  at  the  same  time,  and  the  legislature 
should  recognize  the  convention  as  competent  to  represent  the 
sovereign  power  of  the  State,  the  same  object  would  be  attained, 
and  all  conflict  would  be  avoided. 

Such  convention,  however  assembled,  might  declare  the  griev- 
ances of  the  State,  appoint  delegates  to  sister  States,  to  devise  a 
plan  of  common  redress  within  the  Union,  or  it  might  indicate 
terms  upon  which  the  State  would  continue  quietly  to  perform  its 
duties  within  the  Union.  All  this  might  be  done  without  any  con- 
flict with  the  authority  of  either  government,  State  or  federal.  By 
such  State  action  as  this,  South  Carolina  made  a  crisis,  which  re- 
sulted in  divorcing  the  general  government  from  an  unconstitu- 
tional, discriminating,  protective  tariff. 

Should  such  convention  be  assured  that  it  represented  the  will 
of  the  people,  the  controlling,  intellectual  and  physical  strength  of 
the  State  (which  can  generally  be  very  well  ascertained  by  the 
unanimity,  ardor,  and  firmness,  with  which  the  mass  of  the  people 
enter  into  the  movement),  and  should  the  violations  of  the  federal 
compact  be  deemed  so  flagrant  and  dangerous  as  to  require  an  ex- 
treme remedy,  it  may  declare  the  people  absolved  from  their  feal- 
ty to  the  general  government,  and  devise  such  measures  as  may  be 
necessary  to  protect  their  rights  and  liberties   as   an  independent 


24  '  OUR   FEDERAL   RELATIONS. 

sovereign  power.  If  the  officers  of  the  State,  and  those  of  the  fed- 
eral government  within  the  State,  should  not  resist  the  action  of 
the  convention  of  the  people,  the  result  would  be  a  peaceful  with- 
drawal of  the  State  from  the  confederacy.  Such  action  of  the 
constituted  authorities,  in  harmony  with,  or  at  least  not  in  opposi- 
tion to,  the  sovereign  will  and  power  of  the  people,  must  always  be 
very  desirable,  as  promotive  of  social  order,  whenever  a  State  is 
driven  by  the  impending  danger  to  resort  to  this  remedy.  The 
remedy  itself  may  be  adopted  conditionally,  for  the  purpose  of 
placing  the  State  on  equal  terms  in  treating  for  an  adjustment  of 
satisfactory  guarantees  against  future  violations  of  its  rights,  or  ab- 
solutely for  the  purpose  of  final  separation. 

In  all  these  stages  of  State  action,  too  great  solicitude  cannot 
be  felt  by  all  parties,  to  preserve  social  order,  so  that  if  the  federal 
government  should  refuse  to  recognize  the  right  of  the  State  to  ex- 
ercise its  reserved  right  of  changing  its  form  of  government,  and 
should  endeavor  to  subjugate  it,  the  energies  of  the  people  may  be 
united  in  repelling  the  invasion.  Which  one  of  these  remedies 
may  be  adopted,  it  is  for  the  people  to  say  when  they  shall  have 
found  the  means  of  expressing  their  will.  It  is  my  purpose  now,  to 
show  that  the  present  attitude  of  public  affairs  justifies  them  in 
adopting  either  of  the  remedies  that  they  may  think  necessary  for 
their  safety.  I  have  no  fears  that  inconsiderate  rashness  will  con- 
trol them.  They  have  pondered  upon  the  issues  of  this  crisis  long 
and  well.  It  is  not  unexpected.  They  have  their  minds  made  up 
about  it.  There  is  no  agrarian  spirit  abroad  in  this  country.  There 
is  no  war  of  classes.  There  is  no  conflict  between  labor  and  cap- 
ital. Our  people  are  not  asking  or  seeking  to  extort  any  favors 
from  the  government  to  themselves,  or  deprive  others  of  any  rights. 
They  have  no  motive  or  desire  for  a  social  rapture  at  home.  Their 
excitement  arises  from  an  entirely  opposite  cause, — a  high  resolve 
now  to  throw  themselves  into  the  breach,  not  to  destroy,  but  to 
protect  rights;  not  to  destroy  property,  but  to  protect  property;  not 
to  destroy  life,  but  to  make  life  worth  having;  not  to  produce  dis- 
cord, but  to  end  it.  Their  excitement  is  not  a  shallow,  noisy  rififie, 
but  a  deep,  irresistible  current,  founded  on  the  firmest  conviction 
of  the  mind.  I  do  not  distrust  the  people  of  my  State.  I  will  not 
yield  to  any  argument  founded  on  their  want  of  discretion,  want  of 
intelligence,  want  of  integrity  to  act  for  themselves  in  a  serious 
emergency,  and  to  act  upon  it  now.  They  are  not  disaffected  toward 
the  government  at  all.  They  love  the  Constitution  of  their  coun- 
try; and  would  regard  it  now  as  a  great  boon  to  be  allowed  to  live 
in  peace  under  it,  and  at  the  same  time  to  preserve  their  property, 
their  State  equality,  and  their  honor  as  freemen.  But  the  truth  is, 
that  their  patience  is  exhausted  by  this  endless  wrangling,  raging 
discord,  with  which  they  have  so  long  been  beset,  this  intermed- 
dling interference  with  their  own  rights  by  other  people, — this  ar- 


OUR    FEDERAL    RELATIONS.  25 

rogantly  assumed  control  of  their  destinies  by  pothers,  the  oft-re- 
peated and  continued  violations  of  plighted  faith,  and  disregard  of 
a  sacred  compact.  And  justly  alarmed  by  the  rapid  progress  of 
an  infuriate  revolutionary  spirit,  vvriich,  under  the  guise  and  forms 
of  government,  threatens  to  overwhelm  them,  and  destroy  their 
civilization,  and  ultimately  to  lay  their  country  in  waste,  they  are 
rising  in  their  might  of  outraged  manhood,  to  settle  this  question. 
While  yet  they  have  strength  to  maintain  the  right,  they  will  settle 
it.  Come  weal  or  come  woe,  now  I  trust  it  will  be  settled.  They 
are  in  earnest.  And  now  they  will  demand  all  their  rights,  and  if 
they  do  not  get  them,  they  will  wrest  the  Constitution  from  the 
grasp  of  those  who  mutilate,  pervert,  and  contemn  it,  and  retain  it 
over  those  States  that  have  always  revered  and  obeyed  it.  And  it 
shall  be  our  Constitution.  And  under  that  Constitution,  if  we  be 
men  worthy  to  succeed  to  those  who  made  it  and  gave  it  to  us,  we 
will  shape  for  ourselves  a  glorious  destiny,  as  the  Confederacy  of 
the  South.  Or,  if  we  should  prefer  it,  let  the  flag  that  arose  tri- 
umphant upon  the  plain  of  San  Jacinto,  and  that  now  flutters  in 
the  breeze  throughout  Texas,  be  our  flag  forever. 

The  great  question  before  the  American  people  is,  shall  the  in- 
stitution of  slavery  be  put  upon  a  sure  basis  of  gradual  extinction. 
The  Northern  controlling  majorities  say  it  shall.     The  South  say  it 
shall  not.     And  that  is  the    issue.     This    is    our  institution, — not 
theirs.     It  is  a  part  of  our  political  government,  and  so  recognized 
in  the  Constitution  of  the  United  States  and  of  the  States.     It  is  a 
part  of  our  social  organization.     Our  industrial  pursuits  are  largely 
based  upon  it.     It  constitutes  a  great  portion  of  our  capital.    It  is, 
in  its  results,  the  controlling  influence  that  characterizes  the  civil- 
ization peculiar  to  the  Southern  States.     It   composes  one-third  of 
our  population  (about  4,000,000).     It  is  beneficial  to  both  races, 
the  white  and   the  black.     Its  tendency  is  to   prevent  the  conflict 
between  capital  and  labor.     There  is  no  conflict  between  free  and 
slave  labor  here,  one  being  an  advantage  to  the  other.     It  tends  to 
the  perpetuation  of  our  republican  instutions,  by  establishing  an 
inferior  class,  fixed  by  law,  and  known  by  color;  and  by  promoting 
the  equality  of  the  superior  white  race.     Nor  is    this    a  legalized 
fiction.     For  the  African  race  is  indeed  the  inferior,  intellectually, 
and  for  that  reason  the  better  fitted  for   its'  position    of  servitude. 
Domestic  servitude  of  some  sort,  is  a  necessary  consequence  of  any 
social  organization,  elevated   above  barbarism,  by  its  wealth  and 
refinement.     Although  African  slavery  is  established  by  power,  it 
is  equally  true,  that,  in  its  absence,  the  servitude  of  the  weaker  and 
poorer  portions  of  the  white  race  would   be    forced  upon  them  by 
the  laws  which  protect  property.    It  is  not  a  matter  of  choice  ever. 
Being  a  neeessity  of  society,  that  same  society  finds  the  means  di- 
rectly or  indirectly,  through  the    body  politic,  to    force    it    upon 
some  one.  We  prefer  the  enslavement  of  the  African  race,  because 


26  OUR   FEDERAL    RELATIONS. 

we  believe  it  is  right, — morally  and  politically  right, — that  it  is 
sanctioned  by  revelation,  and  by  the  immemorial  custom  of  man- 
kind, and  was  never  questioned  until  lately, — very  lately, — when 
British  interest  and  religious  bigotry  made  the  discovery,  that  it 
was  exceedingly  sinful.  We  think  it  better  to  make  servants  of  the 
black  race  than  of  the  white.  We  do  not  complain  of  those  who 
differ  with  us  in  opinion.  The  difference  between  the  North  and 
the  South,  in  procuring  menial  services  required  by  society,  is  sim- 
ply in  the  mode  of  applying  the  force  of  the  body  politic,  and  not 
in  the  principle,  except  that  we  apply  the  force  to  an  inferior  race, 
and  they  to  a  part  of  their  own,  the  sons  and  daughters  of  their 
white  neighbors. 

This  crisis  involves  a  great  social  matter,  as  well  as  political. 
If  we  were  disposed  to  yield  the  point,  we  cannot  do  so  without 
ruin.  What  would  we  do  with  our  slaves.  We  have  no  place  to 
send  them  to,  as  did  the  Northern  people.  They,  under  the  oper- 
ation  of  their  gradual  emancipation  laws,  did  not  free  their  slaves, 
but  floated  them  down  upon  us,  and  got  the  money  for  them.  We 
cannot  turn  them  loose  amongst  us.  It  would  be  an  act  of  inhu- 
manity to  them.  They  would  have  no  one  to  protect  them.  They 
would  descend  to  the  vilest  barbarism.  A  war  of  races  would 
ensue,  and  if  they  were  not  exterminated,  they  would  hang  upon 
our  society,  a  demoralizing,  degrading  element,  dragging  us  down 
in  the  scale  of  civilization. 

Our  industrial  pursuits  would  also  be  ruined.  The  resources  of 
this  country  cannot  be  developed,  and  its  prosperity  continued 
without  slave  labor.  In  fine,  it  would  make  us  a  different 
people,  in  all  our  leading  characteristics,  moral,  social,  domes- 
tic, industrial  and  political.  That  is  simply  revolution. 
And  that  is  what  Northern  majorities  are  seeking  to  force 
upon  us.  To  us,  it  is  in  its  final  results,  a  matter  of 
life  and  death, — politically,  socially,  and  economically.  To 
them,  it  is  speculative  experiment,  for  their  and  our  good,  if  noth- 
ing worse.  If  we  yield  to  their  endeavor  to  spread  their  order  of 
civilization  over  us,  it  will  be  a  failure.  For  the  mass  of  free-negro 
element  amongst  us,  would  inevitably  prevent  it.  The  nominal 
freedom  of  the  slave  would  be  purchased  at  the  price  of  the  degra- 
dation of  the  great  mass  of  both  races.  We  cannot,  and  will  not 
yield.  Our  domestic  institutions  belong  to  our  guardianship.  No 
authority  has  been  delegated  to  any  power  to  circumvent  and  de- 
stroy them.  We  have  reserved  the  right  to  control  our  own  destiny 
on  that  subject.  It  is  humiliating  to  have  to  discuss  the  propriety 
of  maintaining  our  reserved  rights,  with  those  whom  they  do  not 
properly  concern,  and  who  are  intermeddling  with  them.  This  ag- 
gressive party  do  not  deny  our  right  to  maintain  slavery  within  the 
Southern  States  where  it  exists;  but  they  do  claim  to  have 
the  right,  derived  from  their  connection  with  us  in  the  same  general 


OUR    FEDERAL    RELATIONS.  27 

government,  to  use  such  means  as  will  eventually  so  act  upon  us, 
as  to  eradicate  slavery  within  the  States.  And  now,  the  position 
which  I  assume  is,  that  the  measures  they  have  adopted,  and 
and  have  put  in  operation,  and  those  which  must  follow  in  the 
same  tram,  constitute  a  character  of  aggression,  that  cannot  be 
successfully  opposed,  or  averted,  except  by  prompt  State  action, 
and  that  we  are  justified  in  pursuing  that  remedy  to  any  extremity 
that  may  be  necessary  to  secure  our  endangered  rights. 

In  pursuing  this  inquiry,  the  following  propositions  may  be  laid 
down,  as  embracing  the  established  theory  of  our  government,  in 
relation  to  the  matters  now  to  be  discussed. 

ist.  The  Constitution  of  the  United  States  is  a  written  com- 
pact, entered  into  between  independent  sovereign  States,  by  which 
they  formed  a  general  government,  of  delegated  limited  powers, 
and  bound  themselves  to  do,  and  to  refrain  from  doing  certain 
things  therein  specified,  which  results  in  regulating  a  whole  sys- 
tem of  governments,  within  the  territorial  limits  of  the  Union,  all 
resting  upon  the  basis  of  delegated  authority,  derived  from  the 
people  of  the  several  sovereign  States. 

2nd.  Each  State,  in  assenting  to,  and  adopting  this  Constitu- 
tion, has  in  its  sovereign  capacity,  bound  itself,  its  internal  State 
government,  its  tribunals,  officers,  and  citizens  to  comply  with  the 
obligations  thereof,  and  to  support  the  general  government,  creat- 
ed by,  and  administered  in  accordance  with  it. 

3rd.  If  this  compact,  thus  entered  into,  be  palpably  broken  by 
the  deliberate  action,  or  non-action  of  some  of  the  States,  or  of  the 
general  government,  so  that  important  rights  of  the  people  of  a 
State  are  taken  away,  or  permanently  rendered  insecure,  it  has  the 
right  to  judge  for  itself  of  the  existence  and  effect  of  such  infrac- 
tion, and  of  the  means  necessary  to  be  adopted  for  the  preserva- 
tion of  such  rights;  and  if,  upon  mature  consideration,  it  should 
deem  it  to  be  necessary  and  proper,  it  may  rightfully,  acting  in  its 
sovereign  capacity,  pronounce  the  Compact  at  an  end,  so  far  as  it 
is  concerned,  and  use  its  combined,  intellectual  and  physical 
strength,  to  maintain  its  separate  independence,  or  it  may  reinvest 
the  delegated  powers,  thus  resumed,  in  another  confederacy,  should 
one  be  formed  by  it  and  other  States. 

These  propositions  are  intended  to  embrace  a  repudiation  of 
federalism  in  the  general  government,  of  nullification  by  the 
States  while  in  the  Union,  and  a  recognition  of  a  subsisting  right 
of  a  State  to  exercise  its  sovereign  power  to  protect  the  rights  of 
its  people,  in  the  event  of  a  dangerous  violation  of  the  compact 
either  by  other  States,  or  by  the  general  government. 

The  leading  characteristic  of  our  American  government  is,  that 
there  is  a  power  of  governing  the  people,  within  the  territorial 
limits  of  the  State,  delegated  to  magistrates,  legislators,  officers 
and  voters,  who,  in  the  exercise  of  the  rights  and  powers  entrusted 


28  OUR    FEDERAL    RELATIONS. 

to  them  by  a  written  constitution,  and  laws  enacted  in  pursuance 
thereto,  constitute  the  actual  government,  which  is  the  State;  and 
at  the  same  time  there  is  a  power,  resting  and  forever  abiding  in 
the  mass  of  the  people,  within  such  limits,  which,  when  they  choose 
to  exert  it,  is  above  and  superior  to  the  Constitution  and  the  ex- 
isting governments,  and  can  make  and  unmake  them,  which  is  sov- 
ereignty, and  the  people  embraced  in,  and  composing  it  are  also 
denominated  a  State.  The  former  is  the  body  politic  organized. 
The  latter  is  a  mass  of  individuals  united  in  the  same  community, 
by  the  existence  of  some  common  or  controlling  elements  of  social 
cement  and  combination.  Each  of  the  several  sovereign  States 
divided  the  powers  of  government  that  it  wished  exercised,  and 
entrusted  a  portion  of  them,  in  common  with  other  States,  to  a 
general  government,  which  the  same  delegation  of  power  by  each 
created,  and  entrusted  other  powers  to  its  State  government,  and 
others  it  reserved  from  all  governments.  One  of  the  powers  re- 
served, was  that  inherent  right  of  the  people  to  make  and  unmake 
governments,  "to  alter,  reform  or  abolish  their  form  of  govern- 
ment." This  was  expressly  reserved  by  the  people  of  Texas  in 
their  Constitution,  and  is  declared  in  the  Constitution  of  nearly 
every  State  of  the  Union.  New  York  and  Rhode  Island,  expressly 
reserved  the  right  to  resume  the  powers  delegated  to  the  general 
government,  in  the  resolutions  of  their  conventions  ratifying  the 
Constitution  of  the  United  States.  There  is  nothing  in  the  pre- 
vious history  of  the  States,  or  in  the  mode  of  framing  and  adopt- 
ing the  Constitution  of  the  United  States,  or  in  the  provisions 
thereof,  that  properly  lead  to  the  conclusion,  that  the  States  in- 
tended to  relinquish  their  State  sovereignty,  and  blend  the  sover- 
eignty of  each  and  all,  into  one  mass,  making  one  people, — a  new 
nation,  then  created.  The  only  ground  for  such  an  assumption, 
arising  upon  the  words  of  the  preamble:  ''We,  the  people  of  the 
United  States,"  etc.,  "do  ordain  and  establish  this  Constitution  of 
the  United  States,"  is  swept  away  by  its  history  tn  the  convention. 
When  first  adopted,, and  as  it  stood,  until  about  the  completion  of 
the  instrument,  it  read:  "  We,  the  people  of  the  States  of  Massachu- 
setts^ Virginia,''^  etc.,  enumerating  thirteen  States.  The  revising 
committee,  whose  province  was  merely  literary,  changed  it,  so  as 
to  read  as  it  does  now,  for  the  obvious  reason,  that  some  of  those 
States  therein  enumerated,  might  not  ratify  it.  And  so  it  was  after- 
wards adopted.  The  general  government  is  federative  in  its  crea- 
tion and  organic  structure;  that  is,  it  was  adopted  by  separate 
State  action,  and  its  executive  and  Isgislature  are  elected  by 
States,  each  manifesting  its  will  through  its  own  majorities.  It  is 
national,  only  in  the  results  of  its  action, — that  is,  by  acting  di- 
rectly upon  the  people  of  all  the  States,  and  by  its  intercourse 
with  foreign  nations,  just  as  if  the  States  were  one  consolidated 
people.     Such  nationality  in  its  action  is  not  in  the  least  incon- 


OUR    FEDERAL    RELATIONS.  29 

sistent  with  the  separate  sovereignty  of  the  several  States.  For  it 
is  no  destruction  or  loss  of  sovereignty  for  a  State  or  nation  to  per- 
mit and  authorize  another  power  to  act  on  its  people  for  certain 
objects,  by  agents  appointed  by  such  foreign  power.  And  it  surely 
is  no  loss  of  separate  sovereignty  for  two  or  more  States  to  appoint 
a  common  agent,  though  that  agent  be  itself  a  government,  and 
associate  themselves  for  common  objects,  so  as  to  act  together  as 
a  unit  in  their  foreign  relations. 

It  must  be  admitted  that  a  State  has  reserved  rights;  among 
which,  are  her  domestic  institutions.  What  use  is  such  a  reserva- 
tion unless  she  has  the  right  of  protecting  them?  There  can  be  no 
such  a  thing  as  an  exclusively  reserved  right,  without  the  inciden- 
tal right  of  protecting  it.  The  very  existence  of  reserved  rights  in 
the  States,  makes  the  existence  of  sovereignty  in  such  States  a  ne- 
cessity, indespensable  in  the  theory  of  our  constitutional  govern- 
ment. Do  we  hold  our  reserved  rights,  subject  to  the  will  of  ma- 
jorities in  in  Massachusetts,  Michigan  ..ad  Oregon?  If  so,  it  is 
simply  absurd  to  say  that  they  have  been  reserved.  If  that  were 
the  nature  of  our  government,  it  would  be  well  to  strike  at  once  for 
a  change,  for  M'e  would  have  no  rights  pertaining  to  our  internal 
aflfairs,  which  might  not  be  taken  from  us  by  majorities  one  thou- 
sand miles  from  us,  by  persons  entirely  ignorant  of  bur  condition 
and  interests,  and  against  our  unanimous  consent.  An  absolute 
despot  nearer  home  would  be  more  tolerable.  There  is  certainly 
no  declaration  in  the  Constitution,  establishing  a  loss  of  sover- 
eignty by  the  States;  and  surely  so  high  a  power,  so  seduously 
guarded,  will  not  be  taken  to  have  been  lost  by  mere  inference, 
unless  the  facts  establishing  it  are  irresistibly  convincing. 

The  facts  of  history  are  all  on  the  other  side.  For  the  purpose 
of  protecting  the  rights  of  its  citizens,  the  State  may  use  its  State 
government,  or  its  sovereign  power,  just  as  the  one  or  the  other 
may  be  applicable  and  adequate.  Which  one  shall  be  used,  and 
to  what  extent  it  may  be  rightfully  exerted,  depends  upon  the  na- 
ture of  the  aggression.  If  the  aggression  be  in  the  shape  of  a  phys- 
ical hostile  attack  upon  their  lives  or  property,  either  the  civil  au- 
thority or  military  power  of  the  State  government,  just  as  the  one 
or  the  other,  or  both  may  be  necessary,  may  be  used  for  their  pro- 
tection. 

If  the  aggression  be  in  the  shape  of  an  unconstitutienal  act  of 
Congress,  acting  directly  on  its  ctiizens  (as  the  sedition  act  under 
the  elder  Adams),  then  the  State  government  can,  as  the  guardian 
of  the  invaded  rights  of  its  citizens,  remonatrate  so  as  to  influei)ce 
public  opinion  and  the  ballot-box;  or  it  may  propose  condemna- 
tory amendments  of  the  Constitution.  Or,  if  necessary,  the  sover- 
eign power  of  the  State  may  be  called  into  action  to  protest  against 
the  aggression,  and  address  itself  to  their  sister  States,  as  well  as 
to  the  general  government,  indicating  its  determination  not  to  sub- 


30  OUR    FEDERAL    RELATIONS. 

mit  to  a  government  that  thus  usurps  authority;  or  indicating  the 
terras  of  its  submission.  The  State  cannot,  however,  while  within 
the  Union,  rightfully  nullify  such  law  of  Congress,  by  the  use  of 
any  of  its  powers,  however  high.  For  while  within  the  confederacy, 
it  has  bound  itself  by  a  different  rule  of  supremacy  than  its  own 
will  in  reference  to  acts  of  Congress. 

In  ratifying  the  Constitution,  it  made  all  its  provisions  a  part  of 
its  own  fundamental  law,  which  prescribes  that  "the  Constitution 
and  laws  of  the  United  States  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
land,  and  the  judges  in  every  State  shall  be  bound  thereby,  any- 
thing in  the  constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding."    (Art.  VI.  Sec.  2,  Con.  U.  S.) 

Congress  must  necessarily  decide  in  the  first  instance,  whether 
its  enactment  is  made  in  pursuance  to  the  Constitution.  This  it 
does  in  passing  the  law.  If  it  meet  the  sanction  of  the  executive 
department  as  well  as  the  legislative,  which  it  does  in  its  passage, 
and  is  also  sanctioned  by  the  judiciary  (if  it  be  a  subject  within 
judicial  cognizance),  it  must  be  regarded  as  having  undergone  all 
the  tests  of  constitutionality,  which  have  been  provided  in  our  sys- 
tem of  government,  and  must  therefore,  within  the  purview  of  our 
system,  be  regarded  as  the  "supreme  law  of  the  land."  As  to  the 
State  government,  it  could  not  contravene  or  nullify  such  law,  .be- 
cause it  is  a  creature  of  delegated  limited  authority,  as  well  as  the 
general  government,  and  no  power  has  been,  or  could  be  given  to 
it,  to  veto  a  law  of  Congress,  as  long  as  the  above  quoted  provision 
stands  in  force.  The  State  in  its  sovereign  capacity  could  not 
nullify  the  law  within  the  Union,  and  while  assuming  to  act  as  part 
and  parcel  of  the  system  of  government,  instituted  by  the  Consti- 
tution of  the  United  States,  because  it  has  reserved  to  itself  no 
such  veto  power  as  part  of  such  system;  and  because,  although 
sovereignty  from  its  very  nature,  cannoi  irrevocably  bind  itself  to 
one  form  of  government  (the  right  to  change  it  being  an  inherent, 
inalienable  right  of  the  people),  still  it  can  well  bind  itself,  for, 
and  in  consideration  of  the  benefits  derived  from  an  associated 
system  of  government  formed  by  difi'erent  equal  sovereignties,  to 
conform  to  a  rule  of  supremacy  (to  wit,  the  expressed  will  of  the 
associated  sovereignties)  variant  from  its  own  will,  so  long  as  it 
may  remain  a  part  of,  and  receive  the  benefits  of  such  associated 
government. 

A  cardinal  principle  of  ©ur  system  of  government  is  the  equal- 
ity of  the  States,  in  proportionally  and  mutually  bearing  the  bur- 
dens, and  receiving  the  benefits  of  the  general  government.  This 
would  be  utterly  destroyed  if  a  few  powerful  States  could  refuse  to 
bear  the  burdens,  while  they  received  the  benefits  equally  with 
the  weaker  States  that  did  bear  them. 


OUR    FEDERAL    RELATIONS.  ^1 

Such  has  ever  been,  and  ever  will  be,  the  wide  difference  be- 
tween the  several  States  in  their  industrial  pursuits,  habits  of  life, 
domestic  institutions,  political  opinions,  moral  sentiments  and  prej- 
udices, that  the  recognition  of  a  veto  power  in  a  State  as  a  part 
of  the  system  would  cause  it  frequently  to  be  acted  upon  by  the 
States;  the  effect  of  which  would  be  to  destroy  the  universal  and 
equal  operation  of  the  laws  in  all  the  States  of  the  Union;  which 
universality  is  another  equally  cardinal  principle  in  our  system  of 
government.  Perhaps  the  most  prominent  reason  for  the  formation 
of  a  more  perfect  union  by  this  Constitution,  was  to  obviate  this 
very  difficulty,  growing  out  of  the  failure  of  the  several  States  to 
carry  into  operation  with  equal  punctuality,  the  laws  of  the  old 
confederation.  The  wise  men  who  framed  it,  would  surely  not 
have  omitted  to  declare  and  define  such  a  check  in  the  govern- 
ment, if  it  had  been  intended  to  be  exercised,  as  a  part  of  the 
grand  system  of  government,  they  were  with  so  much  care,  wisdom 
and  experience  devising.  Nullification  by  the  States  is  to  the  ex- 
tent of  its  operation  a  destruction  of  our  system   of  government. 

If  the  aggression  upon  the  rights  of  the  people  of  a  State  be 
made  in  the  shape  of  a  failure  of  the  sister  States,  or  the  general 
government,  to  perform  their  constitutional  obligations,  the  matter 
complained  of  will,  from  its  nature,  be  beyond  the  reach  of  State 
power  within  the  Union,  exept  by  operating  upon  public  opinion 
and  the  ballot-box,  by  an  appeal  to  the  sister  States  and  to  the 
general  government,  as  previously  indicated.  As  this  character  of 
aggression  may  be  so  flagrant  and  dangerous,  as  is  now  evidenced 
by  the  impending  crisis,  as  to  lead  to  the  exertion  of  the  highest 
powers  within  a  State,  for  the  protection  of  the  rights  of  its  people, 
we  may  better  be  prepared  for  its  consideration  by  taking  a  broader 
view  of  the  Constitution  than  has  heretofore  been  developed. 

The  Constitution  of  the  United  States  not  only  furnishes  the 
structure  of  a  general  government,  but  it  does  more, — it  contains 
provisions,  which  are  in  the  nature  of  treaty-stipulations  between 
the  States,  to  the  observance  of  which  they  are  mutually  bouad, 
by  being  adopted  and  established  by  the  highest  sovereign  power 
of  each  State.  They  are  more  than  treaty-stipulations  between 
sovereign  States,  by  being  thus  made  the  fundamental  law  of  each. 
Regarded  in  this  comprehensive  aspect  (and  so  it  must  be  regard- 
ed for  its  true  spirit  and  grand  purposes  to  be  properly  appreciated 
and  understood),  the  Constitution  regulates  a  whole  system  of  gov- 
ernments, so  as  to  act  in  concert  and  harmony  with  each  other, 
and  with  the  common  government,  which  it  institutes  for  all,  with 
specific  limited  powers. 

These  are  the  obligations  assumed  by  the  States,  that  do  not 
necessarily  enter  into  or  pertain  to  the  structure  or  direct  opera- 
tions  of  the  general  government: 

•'No  State  shall  enter  into  any  treaty,  alliance  or  confederation. 


32  OUR    FEDERAL    RELATIONS. 

grant  letters  of  marque  or  reprisal,  coin  money,  emit  bills  of  credit, 
make  anything  but  gold  and  silver  coin  a  legal  tender,  in  payment 
of  debts,  pass  any  bill  of  attainder,  ex-post  facto  law,  or  law  im- 
pairing the  obligation  of  contracts,  or  grant  any  title  of  nobility." 
So  they  shall  not  without  the  consent  of  Congress  lay  import  du- 
ties, etc.,  duty  on  tonnage,  keep  troops  or  ships  of  war,  or  enter 
into  an  agreement  with  another  State  or  with  a  foreign  power,  or 
engage  in  war  unless  actually  invaded,  etc.  (Sec.  X,  Art.  i,  Con. 
U.  S.) 

"Full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records  and  judicial  proceedings  of  every  other  State,"  etc. 

"The  citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  in  the  several  States." 

"A  person  charged  in  any  State  with  treason,  forgery  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  State, 
shall  on  demand  of  the  executive  authority  of  the  State  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime." 

"No  person  who  shall  be  held  to  service  or  labor  in  one  State 
under  the  laws  thereof,  escaping  into  another,  shall,  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from  such  service, 
or  labor,  but  shall  be  delivered  on  cliim  of  the  party  to  whom 
such  service  or  labor  may  be  due."     (Art.  IV,  Con.) 

This  will  sufiice  to  show  the  class  of  provisions  referred  to. 
They  are  of  much  more  binding  force  than  mere  treaty  stipula- 
tions between  governments.  They  are  binding  upon  the  State 
government  and  every  department  thereof  and  upon  the  officers 
and  citizens,  just  as  is  their  own  State  Constitution.  It  does  not 
require  any  action  of  the  federal  government  under  them  to  make 
them  of  binding  force  in  each  State  as  its  fundamental  law.  A 
State  could  not  coin  money,  even  if  the  federal  government  failed 
to  do  so.  A  State  is  bound  to  deliver  up  slaves  who  escape  from 
their  masters  and  enter  it,  though  Congress  had  passed  no  law 
upon  the  subject,  and  as  much  so,  as  it  is  bound  to  do  anything 
else  by  the  terms  of  its  own  State  Constitution.  This  duty  is  gen- 
erally recognized  and  acted  upon  in  the  case  of  criminals,  who  are 
fugitives  from  justice,  on  demand  of  an  executive  of  a  State,  with- 
out any  law  of  Congress. 

These  provisions  and  their  faithful  observance  are  exceedingly 
important  to  our  system  of  government  in  two  respects,  having 
reference  to  the  diversity  of  interests,  opinions,  habits,  pursuits, 
and  prejudices  which  have  always  existed,  and  must  continue  to 
prevail  in  the  different  States  of  so  extended  a  Union. 

ist.  That  the  general  government  may  be  allowed  to  perform 
those  functions  of  government,  which  are  indispensable  to  the 
existence  and  preservation  of  a  common  government  for  all. 

2nd.     That  the  rights  of  each  State  which  it  enjoys  under  its  re- 


OUR    FEDERAL    RELATIONS.  33 

served  powers,  however  peculiar  they  may  be,  in  response  to  the 
interests,  opinions,  habits,  pursuits  or  prejudices  of  its  own  peo- 
ple, may  be  respected  and  accorded  to  it  by  the  public  authorities 
and  citizens  of  every  other  State  in  the  Union.  Some  such  regu- 
lation as  this  is  absolutely  necessary  to  the  friendship  and  peace 
of  any  two  independent  equal  nations  that  have  any  intercourse 
with  each  other.  Between  foreign  nations,  it  is  secured  ordinarily 
by  treaty,  or  accorded  by  an  enlightened  comity.  It  was  well  known 
to  the  enlightened  statesmen,  who  were  the  authors  of  our  system, 
that  the  strong  do  not  always  accord  this  right  fully  to  the  weak, 
however  ready  they  may  be  to  demand  it  from  others.  And  to 
place  the  States,  however  great  or  small,  on  a  perfect  equality  in 
the  mutual  recognition  of  each  other's  peculiar  rights,  they  did  not 
leave  it  to  fraternal  affection,  or  an  enlarged  liberality,  to  an  en- 
lightened comity,  or  even  to  agreements  or  treaty  stipulations, 
afterwards  to  be  made  by  consent  of  Congress;  but  they  secured  it 
by  the  strongest  obligations  they  could  devise,  the  Constitution  to 
be  adopted  by  the  sovereign  power  of  each  State,  and  thereby  to 
become  the  fundamental  law  of  each  State. 

These  provisions  are  as  material  parts  of  the  compact  as  any 
other,  and  their  reciprocal  observance  punctually  by  each  State, 
constitutes  a  substantial  part  of  the  consideration  to  every  other 
State,  upon  which  it  was  and  is  founded.  Mr.  Madsion,  in  his 
letter  to  Edward  Everett  in  1830,  said,  that  "when  the  Constitution 
was  adopted  as  a  whole,  it  is  certain  that  there  were  many  parts, 
which  if  separately  proposed,  would  have  been  promptly  rejected. 
It  is  far  from  impossible,  that  every  part  of  the  Constitution  might 
be  rejected  by  a  majority,  and  yet  taken  as  a  whole,  be  unani- 
mously accepted.  Free  constitutions  will  rarely  if  ever  be  formed 
without  reciprocal  concessions, — 7vithout  articles  conditioned  on, 
and  balancing  each  other.'"  No  one  can  suppose  for  a  moment, 
that  this  Constitution  would  have  been  adopted  by  the  Southern 
States,  or  even  by  the  Middle  States,  where  many  slaves  were  then 
held,  without  the  provision  for  the  delivery  of  escaped  slaves. 
Without  the  adoption  of  most  of  these  prohibitions  upon  the 
States,  the  Constitution  could  not  have  been  adopted;  such,  for 
instance,  as  the  prohibition  to  coin  money,  to  make  anything  but 
gold  and  silver  a  lawful  tender,  to  make  treaties,  alliances  and 
confederations,  to  keep  troops  or  ships  of  war;  likewise,  also,  the 
obligation  to  give  full  faith  and  credit  to  records,  to  deliver  crim- 
inals, and  to  grant  to  the  citizens  of  each  State  all  the  privileges 
and  immunities  of  citizens  in  the  several  States.  Indeed,  the  same 
may  be  said  of  many  of  the  provisions,  which  enter  into  the  struc- 
ture and  powers  of  the  general  government  itself. 

'I'he  States  should  neither  violate  these  obligations  by  its  own 
action,  directly  or  indirectly,  nor  should  they  permit  their  citizens 
to  violate  them  within  their  limits. 


34  OUR    FEDERAL    RELATIONS. 

But  suppose  they  do?  Suppose  the  Northern  States,  believing 
slavery  to  be  a  sin  and  a  great  social  and  political  evil,  and  having 
nursed  and  cultivated  a  virulent  antipathy  towards  this  institu- 
tion, should  permit  a  set  of  fanatics  to  prowl  along  the  borders  of 
the  free  States,  watching  an  opportunity  to  decoy  a  slave  from  his 
master,  and  have  him  conveyed,  by  the  aid  of  his  associates  and 
the  connivance  of  the  sympathizing  community,  beyond  the  reach 
of  his  owner;  or  if  the  master  should  pursue  his  property,  an  in- 
furiated mob  of  free  negroes  and  worse  white  people,  rescue  the 
slave  and  defy  the  laws  of  the  State  and  of  Congress,  and  perhaps 
avail  themselves  of  some  imprudence  of  the  indignant  and  out- 
raged owner,  slay  him  with  impunity,  and  the  State  permits  it,  or 
what  is  worse,  discharges  the  culprits,  after  a  trial  which  is  made 
a  mockery  of  justice  by  the  same  mob  filling  the  court-house,  and 
making  another  rescue  by  the  by  the  force  of  perjury.  But  that 
is  not  enough,  for  good  men  there  are  in  those  States,  who,  what- 
ever may  be  their  moral  convictions  as  to  their  ownership  of  such 
property,  will  not  stand  by  and  see  a  stranger  outraged  and  robbed, 
who  will  not  see  the  laws  of  their  country  trampled  upon,  who  re- 
gard robbery  and  murder,  and  resistance  to  lawful  federal  author- 
ity, as  more  heinous  offenses  than  owning  and  pursuing  a  fugitive 
slave.  The  hands  of  these  good  men  must  be  tied  so  as  to  let  the 
motley  mob  execute  the  higher  law  of  public  opinion.  To  accom- 
plish this,  the  liberty  bill  is  passed  by  the  States  (a  number  of  them 
at  least).  That  bill,  as  usually  shaped,  not  only  ties  the  hands  of 
the  good  men,  who  would  assert  and  maintain  the  right,  but  should 
the  owner  escape  death  from  the  mob,  he  makes  his  claim  accord- 
ing to  the  laws  of  the  United  States,  under  the  hazard  of  being 
buried  alive  for  many  years  in  the  penitentiary,  by  a  prosecution 
and  conviction  in  the  courts  of  such  States.  Suppose  further,  by 
some  such  process  as  this,  variant  in  different  States  of  the  North, 
the  Southern  people  should  lose  one-half  a  million  to  a  million  of 
dollars  annually,  and  have  their  slave  property  on  the  borders 
much  diminished  in  value  from  its  insecurity.  It  is  certain  that 
by  such  and  similar  means,  the  fugitive  slave  law  of  Congress,  is 
virtually  nullified  by  the  permission  and  legislative  action  of  the 
Northern  States.  In  most  of  them,  indeed,  this  provision  of  the 
Constitution,  for  the  delivery  of  fugitive  slaves,  is  a  mere  dead  let- 
ter,— erased  from  the  Constitution  by  the  broad  black  scrawl, 
drawn  across  it  by  the  hand  of  anti-slavery  fanaticism. 

Now,  suppose  in  the  spirit  of  retaliation,  the  people  of  the 
Southern  States  should  commit  some  outrages  upon  men  whom 
they  suspect  to  be  here  for  some  incendiary  purpose,  and  further, 
the  States  themselves  should  pass  evasive  laws,  so  devised  as  to 
prevent  attorneys  and  agents  from  collecting  Northern  debts,  or 
laws  to  discourage  the  sale  of  Northern  made  goods  (which  I  hope 


OUR    FEDERAL    RELATIONS.  35 

and  trust  no  one  in  the  South  will  ever  think  of  seriously,  as  a  rem- 
edy for  our  wrongs). 

Suppose  that  California   should   establish   a   mint,  and  coin  her 
own  gold,  upon  a  pretext  or  evasion.  Suppose  that  Ohio  and  other 
States,  following  her  example,  should  refuse  to  deliver  up  fugitives 
from  justice,  because  they  could  not  recognize  any  criminality  in 
stealing  a  negro  slave,  or   some  such   ground.     Let  every  peculiar 
interest,  opinion  or  prejudice  manifest  itself,  by  similar  attempts 
to  evade  and  defeat  the  performance  of  these  and  other  plain  con- 
stitutional obligations,  and   our  system   of  government   would  be 
virtually  disorganized   and  destroyed.     It  would  be  changed,  and 
would  have  failed  to  accomplish  the  objects  for  which  it  was  in- 
tended.    It  was  under  a  full  sense  of  the  calamitous  results  of  such 
a  course  that  Mr.  Webster  said,  in  a  speech  in  Virgiuia  in  1S51: 
"I  do  not  hesitate  to  say, and  repeat,  that  if  the  Northern  States  re- 
fuse, willfully  and  deliberately,  to  carry  into  effect  that  part  of  the 
Constitution  which   requires  the   restoratiou  of  slaves,  the  South 
would  no  longer   be  bound   to   observe  the  compact.     A  bargain 
broken  on   one   side   is  broken   on  all  sides."     Nearly  ten  years 
have  elapsed  since   that  was  uttered.     During  all  that  time  many 
of  the  Northern  States,  if  not  most  of  them,  have  not  only  passive- 
ly but  actively  refused  "willfully   and  deliberately"   to  carry  into 
effect  that  provision;  or,  what   is  exactly  the   same   thing  in  sub- 
stance, judged  of  by  any  honest  mind  that  is  unbiased  by  the  fury 
of  fanaticism,  that  very  result  has  been  produced  by  their  counter- 
acting laws  and  permission,  which  were  intended  by  them  to  pro- 
duce it,  and   which   could  have  been  intended   for  nothing  else. 
"  The  South   would  no  longer  be  bound  to  observe  the  contract.     A 
bargain  broken  on  one  side  is  broken  on  all  sides."     A  willful  and 
deliberate  violation  of  the  compact  by  the  Northern  States  would 
absolve  the  people  of  the  Southern  States  from  their  allegiance  to 
the  general  government,  if  they  choose  to  be  absolved  thereby.    It 
is  a  standing,  continuing  violation  by  the  Northern  States,  put  into 
operation  and  practically  acted   on,  and  ready   to  be  acted  on  by 
their  citizens  and  officers,  every  day  in  the   year,  whenever  a  sub- 
ject presents  itself.     It  is  not  a  past,  but  a  continuing  violation, — 
looking  to  the  perpetual  future.     We  are  not  absolved  upon  a  con- 
dition that  the  President  will  march  an  army  into  the  field  to  dis- 
perse any   mob   that  may   be   raised  in   any  spot  throughout  the 
whole  area  of  twelve  or  fifteen   Northern  States.     We  are  not  ab- 
solved upon  the  condition  that   the   Northern  people  will  not  en- 
courage such  rescuing  mobs.     There  is   but  one   condition  in  the 
proposition,  a»d   that  is,  "if  the  Northern  States  refuse  willfully 
and  deliberately  to  carry  into  effect"  the  provision.      It  is  imma- 
terial  about   the   means   they  employ.     The  cjuestion  is,  do  they 
"refuse  willfully  and  deliberately."     The  subject  addresses  itself, 
not  immediately  through  the  general  government,  but  directly  to 


36  OUR    FEDERAL    RELATIONS. 

the  States  themselves.  The  States  are  bound  by  the  obligation, 
and  they  cannot  shelter  themselves  under  the  broad  cover  of  the 
general  government. 

Such  is  the  verdict  upon  the  action  of  those  Northern  States,  by 
the  man,  who  for  twenty-five  years  before  he  pronounced  it,  was  the 
great  intellectual  champion  of  the  Union  party,  and  by  them  rec- 
ognized as  the  greatest  constitutional  expounder  of  their  princi- 
ples which  America  has  produced. 

The  object  of  calling  special  attention  to  this  opinion,  deliber- 
ately expressed,  is  to  show  that  he  placed  the  States  upon  their 
own  responsibility  in  the  performance  of  their  constitutional  obli- 
gations, and  that  such  a  violation  by  them,  equally  as  by  the  gen- 
eral government,  would  be  destructive  of  the  system  of  government 
instituted  and  regulated  by  the  Constitution  of  the  United  States. 

Such  indeed  must  be  the  case.  He  who  regards  the  Constitu- 
tion as  only  instituting  a  general  government,  has  but  half  compre- 
hended the  grand  designs  of  its  formation.  It  is  also  our  inter- 
national code,  as  it  may  be  termed,  securing  the  equality  of  the 
States,  securing  the  mutual  recognition  of  each  other's  reserved 
rights  and  peculiar  interests,  enforcing  an  enlarged  and  liberal 
comity  between  the  States  in  their  internal  administrations,  enforc- 
ing strict  justice  in  rights  of  action,  and  rights  of  properiy  to  citi- 
zens of  diflerent  States,  in  fine,  regulating  the  "balance  of  power" 
upon  a  harmonious  fraternity  of  feelings  and  interests,  which  in 
Europe  requires  a  million  of  bayonets  to  adjust. 

The  States  must  also  be  actively  co-operative  in  the  execution  of 
this  system,  in  the  performance  of  the  constitutional  obligations, 
which  rests  on  them  severally,  as  well  as  electing  officers  to  admin- 
ister the  general  government,  so  as  to  put  the  States  in  active  har- 
mony with  one  another,  and  each  and  all  of  them  in  harmony  and 
in  active  co-operation  with  the  general  government.  It  is  not  to 
be  a  forced  c®-operation  in  the  system,  by  the  hand  of  power.  It 
must  be  voluntary.  Upon  no  other  principle  can  our  free  govern- 
ments be  administered,  which  in  nearly  all  their  departments,  act- 
ing on  the  people,  require  the  citizens  to  participate  in,  or  directly 
aid  in  the  administration  and  execution  of  the  laws  of  the  land. 
When  States,  or  large  sections  of  country  in  a  State,  have  to  be 
forced  by  the  military  power  to  the  performance  of  their  constitu- 
tional obligations,  the  whole  theory  of  our  government  will  have  to 
be  changed,  and  the  sword  will  be  of  much  higher  authority  than 
precedents  in  law  books;  and  the  cannon's  roar  will  be  more  con- 
vincing than  the  eloquence  of  statesmen. 

Gen.  Jackson  at  the  end  of  a  long  life,  spent  in  the  service  of  his 
country,  in  the  most  trying  positions,  all  of  which,  his  intellectual 
power  mastered,  and  who  never  shrank  from  the  use  of  power, 
when  he  believed  it  to  be  right,  and  whose  devotion  to  the  Union 
is  impressed  upon  every  page  of  his  history,  and  while  for  the  last 


OUR    FEDERAL   RELATIONS.  37 

time  surveying  his  whole  country,  which  his  strong  arm  had  so 
nobly  protected,  and  his  wisdom  directed,  left  his  farewell  admoni- 
tion to  his  countrymen  upon  the  very  subject  which  now  convulses 
the  whole  country  : 

"  But  the  Constitution  cannot  be  maintained,  nor  the  Union  pre- 
served in  opposition  to  public  feeling,  by  the  mere  exertion  of  the 
coercive  powers  confided  to  the  general  government.  The  founda- 
tion must  be  laid  in  the  affections  of  the  people;  in  the  security  it 
gives  to  life,  liberty,  character,  and  property  in  every  quarter  of 
the  country,  and  in  the  fraternal  attachments  which  the  citizens  of 
the  several  States  bear  to  one  another,  as  members  of  one  politi- 
cal family,  mutually  contributing  to  promote  the  happiness  of  each 
other.  Hence,  the  citizens  of  every  State  should  studiously  avoid 
everything  calculated  to  wound  the  sensibility,  or  offend  the  just 
pride  of  the  people  of  other  States,  and  they  should  frown  upon 
any  proceedings  in  their  own  borders  likely  to  disturb  the  tran- 
quility of  their  political  brethren  in  other  portions    of  the  Union. 

"  Each  State  has  the  unquestionable  right  to  regulate  its  own 
internal  concerns,  according  to  its  own  pleasure;  and  while  it  does 
not  interfere  with  the  rights  of  the  people  of  other  States,  or  the 
rights  of  the  Union,  every  State  must  be  the  sole  judge  of  the 
measures  proper  to  secure  the  safety  of  its  citizens,  and  promote 
their  happiness;  and  all  efforts  on  the  part  of  the  people  of  other 
States,  to  cast  odium  upon  their  institutions,  and  all  measures  cal- 
culated to  disturb  the  rights  of  property,  or  to  put  in  jeopardy  their 
peace  and  internal  tranquility,  are  in  direct  opposition  to  the  spirit 
in  which  the  Union  was  formed,  and  must  endanger  its  safety.'' 

The  hero  and  sage  of  the  Hermitage,  though  resting  in  his  tomb, 
still  speaks  to  his  country  the  words  of  wisdom. 

This  refusal  of  the  Northern  States  to  deliver  fugitive  slaves,  is 
but  a  part  of  a  well  concerted  scheme  of  continuous  aggression, 
the  full  development  of  which  is  necessary  to  form  a  correct  esti- 
mate of  the  powers  of  the  State  adequate  to  repel  it,  and  of  the 
mode  in  which  it  must  be  exercised. 

The  Constitution  of  the  United  States  is  of  course  not  the  gov- 
ernment. The  exercise  of  the  powers  delegated  by  that  instrument 
to  the  federal  authorities,  its  departments,  officers  and  agents  con- 
stitute the  general  government.  And  while  they  perform  the  duties 
imposed,  and  exercise  just  the  powers  conferred  for  the  objects 
intended  by  it,  the  government  in  operation  under  it,  is  exactly  the 
government  which  the  States  contracted  for,  and  bound  themselves 
to  submit  to  when  they  formed  it.  It  was  contemplated  in  its  for- 
mation, that  the  march  of  civilization  would  make  such  changes 
in  the  habits,  interests  and  wants  of  society,  as  fo  demand  a  change 
in  the  actual  government.  Hence  provision  was  made  to  effect 
such  change  by  amendments  to  the  Constitution,  so  as  to  in- 
crease, modify  or  diminish  the  powers  to  be  exercised,  and  duties 


4.4(J0J 


«> 


38  OUR    FEDERAL    RELATIONS. 

to  be  performed  by  the  federal  authorities.  Such  change,  how- 
ever, can  only  be  made  by  the  consent  of  "the  legislatures  of  three- 
fourths  of  the  States,  or  by  conventions  in  three-fourths  thereof." 
That  is,  the  change  can  only  be  made  by  the  ascertained  will  and 
consent  of  the  people  of  each  State,  to  the  number  of  three-fourths 
of  the  whole. 

Out  of  the  thirty-three  States,  twenty-five  States,  irrespective  of 
the  aggregate  amount  of  population,  must  agree  to  the  change  be- 
fore those  States,  that  dissent  from  it,  are  bound  to  submit  to  it, 
whatever  may  be  the  demonds  of  public  opinion  throughout  the 
Union  as  to  the  propriety  or  necessity  for  the  change. 

Now,  majorities  in  one  more  than  half  the  States  (seventeen), 
may  control  every  department  of  the  actual  government  which  is 
administered  under  the  Constitution.  A  much  less  number  than 
half,  from  the  numerical  strength  of  their  population  may  control 
the  executive  department,  and  the  House  of  Representatives  in 
Congress,  and  thereby  hold  the  whole  government  in  check  and 
infuse  an  influence  in  the  actual  government  which  is  administered 
in  accordance  with  the  will  of  such  controlling  States.  The  check 
is  itself  an  influence  infused  into  the  government,  by  preventing 
action  unless  it  shall  be  shaped  to  suit  the  checking  power.  And 
each  department,  particularly  the  executive,  must  infuse  a  positive 
influence  into  the  government  by  the  exertion,  and  the  mode  of 
exertion  of  its  powers,  which  are  not  subject  to  be  controlled  or 
checked  by  any  other  department.  Thus  it  is  obvious,  that  the 
governing  powers, — the  majorities  that  control  the  part  or  the 
whole,  which  gives  shape  to  the  actual  government,  may  be  very 
variant  from  the  changing  power, — the  majorities  that  are  required 
to  amend  the  Constitution. 

This  presents  a  peculiarity  in  our  government.  In  Great  Britain 
the  law-making  power  resides  in  the  same  bodies,  the  three  estates 
of  the  realm,  that  can  by  a  concurrence,  amend  the  Constitution. 
Its  government  can  therefore  keep  pace  with  the  concurrent  will  of 
the  three  estates,  the  queen,  lords  and  commons.  This  provision 
is  intended  to  secure  our  government  from  the  frequent  changes 
which  great  excitement,  or  fluctuating  public  opinion  upon  new 
questions  might  produce,  and  also  to  cause  respect  for  the  interests 
and  wishes  of  a  respectable  minority,  that  might  be  unwilling  to 
make  such  a  change.  It  is  admitted  that  the  powers  and^  objects 
of  the  general  government  are  limited.  There  is  no  power  dele- 
gated to  the  general  government  or  any  department  thereof,  to  de- 
stroy or  even  to  discourage  slavery.  On  the  contrary,  it  is  recog- 
nized in  the  Constitution,  by  the  representation  given  to  the  States 
for  their  slaves,  by  the  provision  obligating  the  States  to  return 
fugitive  slaves,  and  by  the  provision  which  restricts  Congress 
before  1808  from  passing  any  law  against  the  importation  of  more 


OUR    FEDERAL    RELATIONS.  39 

slaves.     Without  these  provisions  the  Constitution  would  not  have 
been  assented  to  by  many  of  the  States. 

In  the  progress  of  events,  new  objects  and  new  views  of  govern- 
mental action  present  themselves,  which  are  sought  to  be  adopted 
by  the  governing  majorities  that  control  the  government,  but  which 
are  not  adopted  by  the  greater  number  of  majorities,  that  are  re- 
quired to  change  the  Constitution.  This  produces  a  conflict  be- 
tween the  governing  majorities  that  wish  to  advance,  and  the  mi- 
nority that  has  a  right  to  hold  them  back,  and  prevent  any  change 
in  the  actual  government.  There  has  always  been  a  tendency  in 
the  governing  majorities  to  adopt  a  liberal  construction  as  to  the 
powers  delegated,  in  order  to  make  the  general  government  keep 
pace  with,  what  they  considered,  the  true  interest  and  policy  of 
the  country.  This  induces  a  continual  effort  to  find  powers  in  the 
Constitution,  that  are  in  fact, not  expressed,  and  were  never  intended 
to  be  delegated.  By  this  means  the  powers  of  the  government  are 
sought  to  be  enlarged,  and  the  government  is  perverted,  by  being 
made  the  instrument  directly  and  indirectly  of  accomplishing  favor- 
ite objects,  not  at  all  embraced  within  its  scope  of  constitutional  ac- 
tion. This  is  a  change  of  the  government.  But  it  is  a  change  without^ 
the  consent  of  a  majority  in  two -thirds  of  the  States,  and  therefore  un- 
constitutional. It  is  a  change  by  the  infusion  of  extraneous  elements 
of  action  into  the  government,  through  the  perversion  of  its  pow- 
ers, or  through  the  usurpation  of  additional  powers  not  granted. 
It  is  a  change  under  the  forms  of  administering  the  government. 
It  is  the  government  itself  making  a  revolution  without  the  consent 
of  the  States,  that  alone  have  the  right  to  revolutionize.  If  the 
change  should  materially  prejudice  or  jeopardize  their  rights,  not 
having  contracted  for  such  a  government,  they  are  not  bound  to 
submit  to  it;  for  the  general  government  has  no  right  to  exercise 
those  that  have  been  delegated,  in  a  manner  and  with  a  design  to 
accomplish  an  object  not  embraced  within  the  intended  scope  of 
the  government. 

The  preponderance  of  Northern  mind  has  been  predisposed  thus 
to  enlarge  the  powers  and  objects  of  the  general  government. 
Hence  federalism  of  which  this  is  the  essence,  though  often  beaten 
back,  as  often  renews  its  form  of  development,  and  seeks  to  en- 
graft itself  upon  the  government,  and  now  more  than  ever,  bold, 
triumphant,  and  arrogant  demands  its  admission  into  the  govern- 
ment. 

The  preponderance  of  Southern  mind,  has  resisted  this  usurpa- 
tif)n  and  perversion  of  government.  Massachusetts,  the  mother  of 
Northern  States,  and  author  of  their  leading  ideas,  is  the  type  of 
the  former  principle;  and  Virginia,  the  mother  of  Southern  States, 
and  author  of  their  leading  ideas,  is  the  type  of  the  latter.  Here- 
tofore this  federal  principle  has  advanced  the  claims  of  measures 
and   objects,   which   admitted   a   division   of  opinion    both  in  the 


40  OUR    FEDERAL    RELATIONS. 

North  and  South.  At  last  it  has  found  an  object,  which  fastens 
itself  upon  the  great  mass  of  Northern  mind,  and  is  being  infused 
as  an  element  of  action,  into  the  government.  That  element  is 
the  universal  freedom  of  ?nan,  without  distinction  of  color.  When 
the  Constitution  was  adopted,  all  the  States  had  slaves,  with  one 
or  two  exceptions.  Hence  the  provisions  before  referred  to  were 
inserted,  to  permit  the  States  to  acquire  more  slaves,  and  to  pro- 
tect their  property  in  slaves,  and  to  require  every  State  to  respect 
such  rights  of  property.  More  than  half  the  States  since  that  time 
have  become  opposed  to  the  whole  institution  of  slavery;  still  not 
enough  of  them  to  change  the  powers  and  objects  of  the  govern- 
ment by  a  regular  change  of  the  Constitution.  The  controlling 
majorities  in  the  Northern  States  have  determined  to  change  the 
government  on  this  subject,  at  all  hazards,  by  construction,  per- 
version and  evasion  of  its  powers,  so  as  to  discourage  and  destroy 
slavery,  rather  than  protect  it.  Their  acts  and  words  concurring, 
establish  this  plainly. 

The  object  of  a  platform  is  to  indicate  and  avow  the  principles 
upon  which  the  party  agree  to  administer  the  government. 

The  leading  principle  thus  avowed  by  the  Republican  party  is  in 
the  following  language  to-wit: 

^'■Resolved,  That  the  maintenance  of  the'Federal  Constitution  is 
essential  to  the  preservation  of  our  republican  institutions,  and 
shall  be  preserved;  that  we  solemnly  re-assert  the  self-evident 
truths,  that  all  are  endowed  by  their  creator  with  certain  inalien- 
able rights,  among  which,  are  those  of  life,  liberty  and  the  pursuit 
of  happiness;  that  governments  are  instituted  among  men  to  secure 
the  enjoyment  of  those  rights." 

Here  is  the  great  object  avowed — universal  freedom — and  the 
instrument  of  its  accomplishment— ^(?z;<?r«;/^(f«/j',  which  they  have 
been  and  are  now  with  rapid  strides  converting  to  their  purpose, 
both  State  and  Federal.  This  is  not  intended  as  the  assertion  of 
a  fascinating  abstraction.  For  they  "deny  the  authority  of  Con- 
gress, of  a  territorial  Legislature,  or  of  any  individuals  to  give 
legal  existence  to  slavery  in  any  territory  of  the  United  States." 
They  also  condemn  the  action  of  the  present  administration,  "in 
construing  the  personal  relation  between  master  and  servant,  to  in- 
volve an  unqualified  property  in  persons,"  etc.,  "in  its  attempts  at 
the  enforcement  everywhere  on  land  and  sea,  through  the  interven- 
tion of^Congress  and  the  Federal  Courts  of  the  extreme  pretensions 
of  a  purely  local  interest." 

The  doctrine  upon  which  they  plant  themselves  is,  that  there  is 
to  be  no  recognition  of  the  right  of  slavery,  except  within  the 
limits  of  the  slave  States.  They  simply  deny  themselves  the  right 
now  to  make  a  direct  assault  upon  slavery  within  the  slave  States. 
All  other  means  of  attack  is  to  open  to  them  in  attaining  their 
ultimate  object  of  universal  freedom,  through    the  instrumentality 


OUR    FEDERAL    RELATIONS.  4I 

of  the  p«\ver  and  influence  of  the  State  governments  North,  and  of 
the  Federal  government.  They  now  deny  themselves  the  right  to 
pass  a  law  in  Congress  abolishiag  slavery  in  the  States,  but  claim 
the  right  to  use  the  governments  they  may  be  able  to  control  or 
influence,  as  instruments  of  every  sort  of  indirect  attack  for  its 
ultimate  extinction  within  those  States. 

Why  announce  this  principle  of  universal   freedom,  in  reference 
to  the  contemplated  action  of    the    government    upon  the  persons 
who  belong  to  the  Northern  States?     No  one  there  is  controverting 
it  in  its  application  to  those  States,   nor  are  we.     It  can  have  no 
application  but  in  reference  to  the  slaves  of  Southern  masters.     It 
points  out  two  things  distinctly,  to-wit:  the  direction  they  will  give 
to  all  governments  and    departments  thereof,  which  they    may  be 
able  to  control,  in  an  indirect  attack  upon  slavery  within  the  States, 
and  the  basis   upon  which    the  government   shall   rest,  when  they 
shall  have  accomplished  their  ultimate  object.     The  very  best  evi- 
dence that  we  can  have  of  the  purpose  that  actuates  men,  is  what 
they  themselves  declare,  and  what  they  have    done  and  are    doing 
in  correspondence  with  such  declarations.     If  that  test  be  applied, 
there  can  be  no  doubt  as  to  what  is  their  purpose,  in   getting  pos- 
session   of,    and    in   controlling  their  State  governments,  and  the 
Federal  government.     To  exhibit  their  whole  scheme  of  operations, 
— let  us  suppose  it  were  proposed   by  a  man  from  the  North,  in  a 
convention  of   all  the   States  now  assembled,   to  propose  amend- 
ments to  the  Constitution,  that  slavery   should  be    put  upon  a  sure 
basis  of  gradual  extinction;  that  the  means  used  should  not  be  by 
the  passage  of  a  law  of  Congress  abolishing  it,  but  by  a  non-deliv- 
ery of  fugitive  slaves, — by  its  exclusion  from  all  the  territories,  by 
the  general  recognition  of  universal  freedom   (except   only  within 
the  slave  States),  by  the  refusal  of  governors  in  the  free  States   to 
deliver   up   negro    thieves,    upon   the  ground  that  stealing  a  man, 
could  not  be  regarded  as  an  offence,— man  not  being  a  subject  of 
property;  by  the  use  of  the  patronage  and  influence  of  the  Execu- 
tive of  the  Federal*government,   and  when  practicable,   of  all  its 
departments,  to  discriminate  against  slave  labor,   and  the  owner- 
ship of  slaves, — by  protecting  a  free   press  and  free  speech,  so  as 
to  foment  agitation,  discord    and  division  in  the  slave  States,    and 
intensify  the  feeling  of  hostility  to   slavery  in  the  Northern  States; 
by  sending  ministers  abroad  to  array    the    public  sentiment  of  the 
world  against  the  institution;  by  giving  a  premium  to  free  labor  in 
manufactures  and  mechanic  arts  (which  mainly  exist  at  the  North), 
and  to  the  capital  that  employs  it,  through  the  operation  of  a  spe- 
cific protective  tariff;*  by  manifesting  the  public  disapprobation  of 
the  government    in  preventing    the  slave   traffic  in    the  District  of 
Columbia,    under    the  penalty  of  setting  the  slave  free,  if  brought 
there  and  sold — which,  when  safe   to    do   it,    involves  the  right  to 
abolish  slavery  in  that  district;  by    the    States   incorporating  emi- 


42  OUR    FEDERAL    RELATIONS. 

gration  aid  societies,  to  direct  the  redundant  population  of  the 
Eastern  and  Northern  States  into  the  border  slave  States;  by  agi- 
tating the  question  until  all  the  departments  of  the  Federal  govern- 
ment are  enlisted  in  the  cause,  so  as  to  adopt  such  measures  from 
time  to  time  as  may  be  pressed  without  a  rupture,  so  as  to  keep 
the  slave  owner  perpetually  alarmed  for  the  safety  of  his  property. 
All  these  efforts  must  be  directed  towards  the  driving  in  the  bor- 
ders of  slavery  from  State  to  State,  until  it  shall  be  hemmed  into 
a  small  compass  upon  the  Gulf  and  Atlantic,  where  it  will  destroy 
itself.  Then  the  final  object  will  have  been  attained  and  a  hnmo- 
genous  population  be  spread  throughout  the  whole  Union,  upon 
the  basis  of  universal  freedom.  (It  cannot  be  doubted  that  such 
is  the  plan  of  operations  and  designs  of  the  Black  Republican 
party.) 

Would  the  Southern  States  entertain  such  a  proposition?  Would 
they  not  say  that  "you  propose  to  put  our  own  government  in  di- 
rect antagonism  to  the  rights  of  the  South,  and  make  it  an  instru- 
ment of  destruction,  and  thereby  subvert  the  objects  of  govern- 
ment, which  is  to  protect  not  to  destroy  the  rights  of  its  citizens; 
you  propose  to  give  money,  as  a  premium  to  the  labor  of  the  North 
of  a  particular  class,  and  add  to  the  capital  that  employs  it,  which 
is  not  protecting  property,  but  giving  it  without  any  consideration 
out  of  means  unjustly  taken  from  others. 

In  other  words,  you  subvert  the  very  object  of  government, 
which  is  to  protect  rights, — not  either  to  donate  them  gratuitously 
to  one  section, — or  to  destroy  them  in  another.  You  propose  to 
strike  one  clause  entirely  out  of  the  Constitution,  which  is  import- 
ant for  the  protection  of  our  rights,  the  delivery  of  fugitive  slaves. 
You  propose  to  give  the  right  to  abolish  slavery  in  the  District  of 
Columbia."  It  is  useless  to  enumerate  further.  For  it  is  too  ob- 
vious that  such  measures  would  produce  a  change  in  the  govern- 
ment, thoroughly  radical  in  reference  to  the  domestic  institutions 
of  the  Southern  States,  and  infuse  an  element  of  action,  that  its 
founders  never  thought  of  being  embraced  in  if,  and  which  would 
not  be  assented  to,  if  now  proposed,  by  a  single  Southern  State. 
In  the  effort  to  attain  the  unconstitutional  object,  the  change  of 
the  domestic  institutions  of  the  States,  the  General  Government 
would  itself  be  changed,  through  the  governing  majorities  of  a 
little  over  half  the  States,  and  not  by  the  consent  of  three-fourths 
of  them.  It  would  be  changed  by  flagrant  and  dangerous  perver- 
sions of  its  powers  to  objects  not  intended,  and  by  an  usurpation 
of  powers  not  granted.  The  whole  system  instituted  by  the  Con- 
stitution would  be  disorganized  and  perverted,  by  the  States  failing 
to  perform  their  constitutional  obligations,  and  by  using  their 
powers  to  attack  and  endanger  the  rights  of  sister  States. 

Why  then  wait  for  an  overt  act  after  Lincoln  is  inaugurated  ? 
These  are  palpable,   deliberate   and   dangerous  violations  of  the 


OUR    FEDERAL    RELATIONS.     .  43 

Constitution,     Some  of  which  have  already  been  done  and  are  be- 
ing done,  and  the  rest  certainly  contemplated  and  intended. — They 
are  not  violations  waived  by  acquiescence.     They    are    subsisting, 
continuing,  progressing,  and  increasing  violations.     The    election 
of  Lincoln  shows  that  they  are  sanctioned  and  affirmed,  and  there- 
by shown  to  be  the  deliberate  will  of  the  controlling  majorities  in 
the  Northern  States,     By  his  election  under  the  avowed  principles 
of  his  party,  the  whole  attitude  of  the  Northern  States,  impressed 
upon  them  by  that  ruling  party,   is   an  overt    act;  an  array  of  the 
powers  of  their  States,  and  of  the   Federal   Executive  and    of  the 
checking  influence  within   the  general  government  itself,  against 
our  constitutional,  and  reserved  rights,  in  reference  to   slaves  and 
slavery.     This  overt  act  is  evidenced,  not  by  two  witnesses,  but  by 
the  million,   or  perhaps   millions    of  voiers  in   the  late   election. 
The  intention,  only  not  treasonable  because  manifested  by  the  con- 
trolling majorities  under  the  forms   of  the   Constitution,  is  openly 
avowed  by  all  the  leaders  of  the  conspiracy,  and  needs  not  to  be 
proved  by  inference  from  their  acts- 
Overt  act  by  a  direct  attack   upon   slavery  in  the  States!     Who 
expects  it?     They  do  themselves  disclaim  it.     That  is  not  the  way 
of  the  battle.     Their  whole   scheme  of  battle  is  a  siege, — a  pro- 
tracted siege.     It  is  a  siege  for  years  to  come.     They  have  gained 
nearly  all  the  positions  they  want  or  need.     Let  them  retain  them, 
and  get  well  fortified  in  them,  and  they  will   environ  us  with  their 
easy  leisure.     Our  defeat  will  be  a  matter  of  time  only.     Are  those 
who  are  waiting  for    the    overt  act,    looking  out   for    the  storming 
party  to  advance?     It  will  not  come  shortly.     It  will    never    come 
until  we  are  shut  in  on  all   sides,   worn  down,  dispirited,  divided 
and  not  able  to  resist. — Then  will  it  come  to  win  an  easy  victory. 
But  even  in  that  dreadful  day,  if  come  it  must,  I  expect  to  see  some 
brave  spirits  stand  upon  the  outer  wall,  and  fall  as  freemen,  rather 
than  see  the   black  flag  of  fanaticism   waving  triumphantly   over 
their  beloved  South. 

The  virtual  refusal  of  many  of  the  Northern  States  to  deliver 
f  jgitive  slaves  in  pursuance  of  their  constitutional  obligation,  and  of 
a  law  of  Congress,  which  they  have  in  effect  nullified  all  over  the 
North,  either  by  the  unrestrained  action  of  the  people,  or  by  State 
enactments,  is  itself  a  dangerous  violation  of  the  compact,  which  must 
result  in  driving  in  the  borders  of  slavery  while  the  hostility  is  kept 
up.  The  exclusion  of  slavery  from  Kansas,  and  their  readiness  to  do 
so  from  any  other  territory  by  State  action,  in  incorporating  emi- 
gration aid  societies,  and  thereby  organizing  capital  and  individ- 
ual enterprise  in  the  accomplishment  of  a  political  object,  injurious 
to  the  people  of  the  Southern  States,  and  devised  for  their  exclu- 
sion, is  an  outrage  upon  the  spirit  of  the  compact;  which  enjoins 
comity,  fraternity  and  equality  among  the  States.  The  infusion  of 
the  free-soil  element  into  the  general  government,   by  abolishing 


44  OUR    FEDERAL    RELATIONS. 

the  slave  traffic  in  the  District  of  Columbia,  instead  of  regulating 
the  traffic  within  the  city  of  Washington,  as  a  mere  police  arrange- 
ment, and  also  by  the  election  of  a  Speaker  of  the  Lower  House, 
with  the  influence  that  it  gives  in  influencing  the  action  of  Con- 
gress and  the  public  opinion  of  the  country,  is  to  the  extent  of  their 
operation  a  perversion  of  the  government  to  an  object  not  intended 
to  be  within  its  scope. 

Thes  things  with  others  that  might  be  named,  might  be  borne 
with  while  there  was  hope  of  a  returning  sense  of  justice  rectify- 
ing the  wrong.  But  they  are  parts  of  the  scheme,  and  the  late 
election  is  an  authorative  sanction  of  them,  by  their  controlling 
majorities,  and  it  is  much  more,  it  is  what  they  knew  to  be  a  haz- 
ardous forced  march,  to  reach  the  main  central  point  in  their 
scheme  of  operations,  possession  of  the  executive  arm  of  the  gov- 
ernment, with  all  its  power,  patronage  and  influence — which,  if 
maintained,  will  enable  them  to  gradually  put  in  operation  their 
whole  scheme,  without  any  further  shock  upon  the  body  politic, 
and  insure  its  progress  and  ultimate  consummation. 

To  properly  appreciate  the  danger  we  are  in  from  this — the  turn- 
ing point  of  the  project  of  invasion,  it  must  be  recollected  that  the 
present  crisis  involves  not  only  these  political  questions  upon  which 
the  revolution  of  both  the  Federal  and  our  Southern  State  govern- 
ments depend,  but  also  religious,  social  and  industrial  questions, 
which  cluster  around,  and  are  connected  with  them,  tending  to 
increase  their  force,  and  to  insure  their  durability. 

European  society,  since  the  extinction  of  villenage  and  serfdom, 
has  assumed  and  rests  upon   the  basis,  that  every  person  of  lawful 
age  must  provide   for  himself,   and   the   liberty  and   the  means  of 
doing  it  are  controlled  by  the  few, — the  governing  class.     Society, 
in  the  Northern  States,  has  made  an  advance  upon  this,  and  has  for 
its  basis,  that  every  person  of  lawful  age  must  provide   for  himself 
(and  family),  and  that  the  liberty   and  means  of  doing  so  are  con- 
trolled by  the  great  mass   of  male   citizens   of  lawful    age;  and  in 
those  States   where  free-negro  suffrage   is  allowed,   the  point  has 
been  reached,  to  which  they  are  all  in  theory  tending,  that  all  men 
are  free  and  politically  equal.     Whereas  Southern  society  is  based 
on  this  same  principle  as  to   the  white  race,   but  as  to  the  black 
race,  some  one  is  required  by  law   to  provide  for  them,    and  own 
them  as  slaves,  and  that  they  are  neither  free,  nor  have    any  con- 
trolling power  in  our   States.     This  difference  lies  at  the  foundation, 
and  is  the  leading  cause  of  the   difference  in   the  two   orders  of 
civilization  prevailing  at  the  North,  and  at  the  South;  and  which 
is  fast  tending  to  make,  if  it  has  not  already  made   us  so  antago- 
nistic in  principle,  as  to  render  it  difftcull,   if  not  impossible,    to 
maintain  even  a  federative  connection.     It  has  arrayed  the  North 
against  the  South.     This  difficulty  is  not  of  our  seeking,  and  there 
is  no  necessity  for  it.     It  is  forced  upon  us  by  the  controlling  ma- 


OUR    FEDERAL    RELATIONS.  45 

jorities,  now  becoming  overwhelming,  and  by  the  propagationist 
spirit,  which  has  become  a  part  of  their  national  character,  and  is 
impelling  them  in  the  effort  to  spread  their  order  of  civilization 
eventually,  throughout  the  whole  country.  In  the  township  divis- 
ion of  the  North,  is  exhibited  in  miniature,  the  fundamental  ele- 
ments which  form  Northern  civilization. — There,  they  have  the 
school-house,  the  church,  the  farm,  the  store-house,  the  work-shop, 
the  township  meeting  for  police  and  government,  anjj  in  some 
places  the  ship.  Each  interest  struggles  to  elevate  itself;  and  each 
is  discussed  by  all,  and  the  activity  of  each  in  harmony  with  the 
others,  elevates  each  and  all  together,  embracing  education,  relig- 
ion, morals,  labor,  commerce,  manufacture,  shipping  government, 
and  all  others.  From  the  township  it  ascends  to  the  county,  to 
State,  and  to  the  whole  Northern  section;  throughout  which  the 
press,  the  pulpit,  lectures  and  speeches  are  the  great  medium  of 
active  communication,  and  reciprocal  interchange  of  opinions,  and 
of  the  establishment  of  leading  ideas  in  common  throughout  the 
country.  Those  leading  ideas,  being  in  harmony  with  each  other, 
and  continually  acting  and  re-acting  on  each  other,  intensify  each 
and  all,  to  a  degree  rarely  ever  found  in  any  other  country.  And 
there  is  a  continual  tendency  of  all  the  leading  ideas,  thus  generated 
and  intensified,  to  pass  up  from  the  religious,  moral,  social,  indus- 
trial and  commercial  sphere  in  which  they  originate;  into  the  po- 
litical, and  to  impress  themselves  upon  the  government  of  our 
country.  Their  preachers  have  been  leaders  in  all  the  political 
excitements,  from  the  day  of  Cotton  Mather,  to  the  present  time, 
and  this  practice  has  givengreat  prominence  to  political  measures, 
which  involved  moral  or  religious  questions.  All  this  is  signally 
displayed  in  the  rise,  progress  and  political  adoption  of  the  anti- 
slavery  sentiment  of  the  North.  The  figures  representing  the 
strength  of  this  party,  in  the  different  elections  for  President  since 
1840,  is  well  calculated  to  deceive,  as  to  the  original  formation, 
and  character  of  the  present  Black  Republican  party. 

They  stand  thu*: 

1840 — votes,  7,000 — Birney. 

1844—     "    62,140—     " 

1848 —     "  296,232 — Van  Buren  and  Gerrit  Smith. 

1852 —     "   157,296 — Hale.-  • 

1856 —     1,341,812 — (127  electors)  Fremont. 

i860 —     enough  to  elect — T^incoln. 

Was  this  gain  an  accumulative  increase  by  the  conversion  of  in- 
dividuals to  the  principle  from  time  to  time?  By  no  means.  The 
great  substratum  of  moral  sentiment  throughout  the  whole  North 
fifty  years  ago,  was  the  conviction  that  African  slavery  was  a  sin — 
a  moral,  social  and  political  evil.  For  some  time  it  remained,  ex- 
cept in  occasional  outbursts,  a  moral  and  religious  question.  By 
the  Northern  process  of  intensifying  their  favorite  ideas,  it  by  de- 


46  OUR    FEDERAL    RELATIONS. 

grees  became  inflamed  into  a  burning  enthusiasm,  that  struggled 
to  exhibit  itself  into  political  action.  The  political  parties  re- 
pressed it  with  a  strong  hand,  and  long  kept  its  agitation  down 
within  the  religious  and  moral  sphere.  It  brought  to  its  aid  a 
whole  cluster  of  associated  ideas,  and  where  one  failed  another 
was  sure  to  plead  its  cause.  These  were  universal  freedom,  polit- 
ical equality,  respectability  of  labor,  a  cultivated  sentiment  of 
humanity,  the  missionary  feeling  which  prompted  the  desire  to 
spread  free  labor,  and  Northern  institutions  over  the  continent, 
political  and  sectional  jealousy,  and  various  others  of  less  conse- 
quence. Aided  by  all  these,  the  excitement  became  active  and 
wide-spread.  It  struggled  as  a  volcano,  seeking  a  vent  for  its  pent 
up  fires.  In  a  remote  region  of  Ohio,  where  the  appliances  of 
political  party  management  were  weakest,  and  where  men  were 
free  to  put  their  moral  convictions  into  action,  it  burst  forth  and 
sent  Joshua  Giddings  into  Congress,  a  fit  representative  of  the 
great  substratum  of  moral  sentiment,  to  proclaim  its  advent  into 
the  political  arena  at  the  capitol.  So  in  other  parts  it  broke 
through  the  pressure  and  sent  a  Wade,  a  Chase,  a  Hale  and  others. 
No  rebuke,  no  abuse,  no  party  training  could  repress  Jit,  no  threats 
intimidate,  no  ridicule  abate  its  ardor.  It  marched  on  with  its  in- 
tensity increased  by  every  opposition.  Cast  down  prostrate,  it 
arose  with  ten-fold  strength.  Smothered  in  one  place,  it  blazed 
forth  in  an  hundred  other  places.  One  by  one  it  took  possession 
of  their  State  governments.  It  is  filling  up  Congress  with  mem- 
bers approaching  to  majorities  in  both  houses.  Twice  has  it  elect- 
ed a  speaker  of  the  lower  house,  with  an  apparent  minority.  It 
has  scattered  and  broken  to  pieces,  or  swallowed  up  all  other  po- 
litical parties. 

Perhaps  as  long  as  twenty  years  ago,  Joshua  Giddings  told  us 
that  he  was  the  true  representative  of  the  mass  of  Northern  senti- 
ment, and  that  the  people  would  speak  out.  He  has  lived  to  see 
his  words  verified  by  the  outburts  all  over  the  North,  which  now 
makes  Lincoln  President.  Having  conquered  all  opposition  at 
home,  it  will  now  find  fields  abroad  to  conquer.  It  can  now  gather 
up  its  strength,  and  throw  its  whole  force  against  the  only  point 
of  antagonism  that  resists  the  spread  of  Northern  civilization  over 
all  the  Slates.  This  is  no  new  principle,  just  being  espoused  by  a 
party  in  the  North.  It  is  old,  and  the  only  thing  new  about  it  is, 
in  raising  it  from  the  moral  and  religious  to  a  political  sphere  of 
action,  in  getting  the  consent  of  the  ruling  majorities  to  use  the 
governments,  State  and  Federal,  as  instruments  in  aid  of  Northern 
public  opinion,  to  besiege  slavery,  and  gradually  beat  it  back  from 
State  to  State,  until  Northern  civilization  shall  be  spread  over  the 
Southern,  as  well  as  over  the  Northern  States. 

The  ordinary  means  of  seeking  a  remedy  for  infractions  of  the 
Constitution,  where  the  people    of  different   sections   are    divided 


OUR    FEDERAL    RELATIONS.  47 

upon  the  questions  involved,  are  now  wholly  unavailing.  We  have 
no  means  of  reaching  sister  States  that  nullify  the  laws  of  Con- 
gress, or  the  majorities  of  the  section  that  control  the  executive 
arm  of  the  Federal  government,  and  which  will  eventually  (if  not 
checked)  control  all  its  departsments.  From  the  very  nature  of 
the  attack  upon  our  constitutional  and  reserved  rights,  we  have  no 
remedy  but  for  State  to  address  State  through  its  sovereign  power, 
and  demand  a  return  to  the  compact,  as  a  condition  of  future 
union. 

If  we  cannot  protect  our  rights  within  the  Union  from  the  ag- 
gressions of  the  controlling  Northern  majorities  attacking  them, 
through  the  general  government,  through  their  State  governments 
and  through  the  unlawful  conduct  of  their  citizens,  under  the  in- 
fluence of  vitiated  public  opinion,  we  may  rightfully  withdraw  from 
the  Union  to  protect  them.  Otherwise  the  States  have  no  reserved 
rights.  Rights  of  a  State  are  not  and  cannot  be  reserved,  which 
may  be  controlled  or  taken  away  by  majorities  in  other  States 
against  the  will  of  the  whole  people  of  such  State.  This  is  too 
plain  for  argument. 

The  only  hope  for  saving  the  Union  is  for  the  Southern  States  to 
act  promptly,  and  act  together,  in  such  way  as  to  present  the  al- 
ternative to  those  Northern  majorities,  requiring  them  to  choose 
between  anti-slavery  and  the  Union. 

They  cannot  have  both.  We  might  thereby  enable  the  valiant 
friends  of  the  Constitution  at  the  North  to  beat  back  this  fanatical 
domination,  and  destroy  it  forever.  Mere  party  promises  will  not 
avail  us.  They  may  be  just  as  fair  as  the  bow  of  promise  that 
spans  the  heavens,  and  yet  just  as  unsubstantial.  What  we  have 
to  do  now  is  with  the  people  of  the  Northern  States  in  their  sover- 
eign capacity.  A  radical  change  of  purpose  towards  «s,  so  mani- 
fested, is  the  only  thing  that  will  secure  our  safety  in  the  Union  any 
longer.  If  this  cannot  be  obtained,  the  Southern  States  must  leave 
the  Union,  if  they  intend  to  remain  free.  The  Southern  States 
have  not  for  ten  years  past  been  able  to  maintain  their  rights 
against  the  aggressions  of  this  party  acting  in  and  through  the 
Northern  States,  while  the  federal  government,  in  all  of  its  depart- 
ments. Executive,  Legislative  and  Judicial,  were  in  our  favor. 

What  are  we  to  expect,  when  the  general  government  is  used  to 
assist,  and  not  as  heretofore  to  oppose  their  efforts  against  us? 
Can  a  free  people  permanently  submit  to  a  government  possessed 
and  used  for  the  avowed  purpose  of  circumventing,  undermining 
and  ultimately  destroying  their  Tital  interests,  by  the  known  and 
declared  enemies  of  their  domestic  institutions?  Must  we  live 
under  a  government  that  we  look  upon  as  an  unrelenting  enemy 
and  still  be  free?  It  is  impossible.  If  the  Northern  mind  is  fixed 
in  its  anti-slavery  purpose,  as  I  fear  it  is,  then  the  point  of  antag- 
onism has  been  reached,  that  makes  us  two  people,  and  a  paper 


48  OUR    FEDERAL    RELATIONS. 

Union  is  no  Union  at  all  The  two  sections  might  now  receive 
benefit  from  the  wise  example  of  Abraham  and  Lot,  and  part  in 
peace,  if  they  can  no  longer  live  in  harmony. 

The  question  is  sometimes  asked,  can  the  Southern  States  pro- 
tect their  rights  against  this  aggressive  assault,  out  of  the  Union 
any  better  than  in  it.  Admit  that  we  cannot,  are  freemen  to  sub- 
mit to  the  perpetual  degredation  of  inequality,  let  the  consequences 
be  what  they  may?  Has  a  nation,  a  people,  a  State,  no  spirit  to 
be  outraged,  or  is  it  a  collection  of  pelf  and  animal  life?  But  then 
we  can  protect  ourselves.  The  Southern  States  have  all  the  ele- 
ments of  national  strength  in  a  brave  people,  intelligence,  wealth, 
extent  of  country,  soil,  climate  and  labor.  Out  of  the  Union  we 
would  cease  paying  a  heavy  tribute,  which  we  have  always  paid 
uncomplainingly,  to  Northern  labor,  capital  and  enterprise,  as  an 
incidental  advantage,  which  they  have  derived  from  the  operation 
of  the  general  government;  while  our  great  interests  have  received 
little  or  no  incidental  advantages  from  it.  I  refer  to  the  millions 
paid  to  Northern  labor,  capital  and  enterprise,  in  their  monopoly 
of  our  foreign  commerce,  in  our  coast-wise  trade,  and  navigation 
and  shipping  interests;  in  their  fish-bounty  in  their  inventions  and 
book  making;  in  their  manufactures  and  mechanic  arts  of  all 
sorts,  incidentally  protected  by  a  tariff  that  raises  from  sixty  to 
eighty  millions  of  dollars  revenue;  in  their  government  contracts 
for  fortifications,  ships  of  war,  navy  and  army  supplies,  or  the  like. 

But  further,  this  fanatical  sentiment  of  the  North  will  not  con- 
tinue its  aggressions  upon  us  if  we  are  a  separate  nation, — because 
the  Northern  people  will  not  feel  themselves  responsible  for  what 
they  now  regard  as  the  sin  of  slavery.  Other  political  questions, 
pertaining  to  their  own  interest,  will  divide  and  occupy  their  at- 
tention, and  this  one  will  become  obsolete  for  want  of  an  object  to 
operate  upon,  and  parties  can  no  longer  be  arrayed  upon  it.  The 
excessive  cultivation  of  a  class  of  ideas  such  as  the  respectability 
of  labor,  labor  deserves  its  wages,  capital  i7iust  employ  and  pay 
labor,  will  give  them  employment,  terrible  employment,  at  home, 
sooner  or  later.  They  will  be  interested  in  maintaining  amity 
with  us  for  trade  and  exchange,  which  they  cannot  expect  to  do 
if  the  aggression  continues.  We  have  nothing  to  fear  from  the 
moral  sentiment  of  the  civilized  world  upon  this  subject.  The  re- 
action has  already  commenced.  The  cooley  trade  proves  it.  Be- 
sides that,  Spain  maintains  slavery  in  Cuba,  and  Brazil  maintains 
slavery.  Russia  has  millions  of  serfs,  white  people  in  bondage. 
Our  cotton,  tobacco  and  other  staples  will  cause  friendly  relations 
with  us  to  be  sought  throughout  all  Western  Europe.  So  that  if 
we  are  driven  out  of  the  Union  to  secure  the  preservation  of  our 
rights  against  this  arrogant  revolutionary  party,  I  have  no  fears 
that  the  South  will  not  maintain  its  rights,  and  secure  its  pros- 
perity. 


OUR    FEDERAL    RELATIONS.  49 

I  trust  that  Texas,  before  the  fourth  of  March  next,  will  have  as- 
sembled her  wisdom,  taken  her  position,  and  be  in  readiness  to 
co-operate  with  her  sister  Southern  States,  whether  it  be  in  or  out 
of  the  Union. 

It  has  been  suggested  that  an  effort  is  being  made  to  hold  an 
election  in  Texas  for  delegates  to  a  convention,  on  the  8th  of  Jan- 
uary, next.  1  hope  that  it  will  be  done.  That  is  an  appropriate 
day  for  it. 

Texans  may  cast  their  votes  on  that  day,  inspired  by  the  brill- 
iant achievement  that  made  it  memorable: — Southern  valor  driv- 
ing back  the  enemy  that  dared  to  invade  Southern  soil. 


to  OUR   FEDERAL   RELATIONS. 


A  LECTURE. 


UPON  THE  RIGHT  OF  SOVEREIGNTY;   ITS  LOCATION,  AND  USES,  IN  THE 
DIFFERENT  AMERICAN  GOVERNMENTS. 


[It  was  first  delivered  as  a  public  lecture,  in  the  University  of 
Texas,  and  afterwards,  by  request  of  a  number  of  citizens,  it  was 
repeated  to  an  audience  in  the  capitol  of  the  State.] 

"■'  IN  THE  CAPITOL. 

Fellow  Citizens — I  have  prepared  this  lecture  with  no  desire 
of  raising  a  political  issue,  nor  with  any  expectation  of  its  having 
any  influence  in  political  action  at  the  present  time.  In  doing  it 
I  have  sought  to  present,  in  condensed  shape,  the  facts  of  history 
upon  which  the  right  of  sovereignty  was  based,  according  to  the 
opinion  of  the  people  in  eleven  Southern  States,  under  which  they 
seceded  from  the  Union  in  i860  and  1861. 

The  subject  has  not  been  one  of  public  discussion  for  the  last 
twenty  years  past.  It  is  due  from  those  who  were  participants  in 
the  great  events  of  that  period,  to  furnish  information  to  the  young 
men  of  the  present  generation,  from  which  they  may  conclude 
that  the  right  was  assumed  in  good  conscience  on  the  part  of  those 
who  were  the  actors  in  it. 

To  contribute  my  mite  in  doing  that,  and  that  alone,  is  my  pur- 
pose in  this  lecture. 

The  professors  of  the  University,  every  fortnight  during  the 
session,  have  a  public  lecture  delivered  by  one  of  them,  in  the 
University,  upon  such  subject  as  he  may  select. 

Having  in  my  turn  delivered  this  lecture,  and  some  persons  in 
the  city,  who  were  not  present,  having  expressed  a  desire  to  hear 
it,  I  have  consented  to  repeat  it  here.  And  now  I  must  crave 
your  patience  in  hearing  it.  As  the  mariner  on  a  long  voyage  may 
have  to  stop  at  ports  of  no  great  interest  on  the  way,  still  they  may 
be  necessary  to  be  passed  in  the  route  to  reach  the  port  of  desti- 
nation. So  it  may  be  found  in  this  lecture,  that  facts  of  history 
that  may  not  be  of  great  importance  intrinsically,  are  referred  to, 
which  are  still  necessary  to  reach  the  final  result. 

In  every  independent  State  or  Nation  that  has  a  settled  constitu- 
tion, written  or  unwritten,  there  must  be  a  sovereign  power.  The 
American  doctrine  is,  that  it  exists  and  abides  with  the  people,. 


OUR    FEDERAL    RELATIONS.  5 1 

and  that  they  have  delegated  certain  powers,  by  which  the  fed- 
eral government  is  created  and  carried  on,  and  a  state  government 
is  established  and  carried  on  in  each  of  the  States.  The  delega- 
tion of  the  power  to  establish  and  carry  on  a  government,  does 
not  detract  from  or  diminish  the  entirety  of  sovereignty  still  abid- 
ing with  the  people.  Our  governments,  therefore,  do  not  exercise 
sovereign  powers.  The  people  only  exercise  sovereign  powers,  in 
the  formation  and  adoption  of  their  constitutions.  In  and  by 
those  constitutions,  they  delegate  to  certain  persons,  with  the  re- 
quired qualifications,  legislative,  executive  and  judicial  powers  of 
government.  The  power  to  vote  even  is  a  delegated  power,  grant- 
ed to  persons  having  the  requisite  qualifications,  as  prescribed  in 
the  constitutions.  It  is  not  by  his  being  a  unit  in  the  sovereignty, 
that  he  exercises  the  elective  franchise  ;  for  on  that  principle, 
women  and  minors  would  vote,  as  they  constitute  parts  of  the 
sovereignty, — the  people. 

These  American  governments,  as  they  existed  at  different  peri- 
ods, in  their  foundation,  structure  and  mode  of  action,  are  sui 
generis^  different  from  all  other  governments,  ancient  or  modern. 
The  language  used  in  reference  to  them  and  to  their  action,  should 
be  indicative  of  their  peculiar  organization,  and  of  the  distinctive 
character  of  the  powers  exercised  by  them.  Unfortunately,  very 
often  that  has  not  been  the  case,  with  law  writers,  commentators, 
eminent  judges,  and  great  statesmen.  This  is  exhibited  in  such 
expressions  as  the  following,  to-wit  :  "I'he  government  of  the 
United  States  was  erected  by  the  free  voice  of  the  people  of  Amer- 
ica for  their  common  defense  and  general  welfare."  "It  is  clothed 
with  the  principal  attributes  of  political  sovereignty"  .... 
"The  association  of  the  American  people  into  one  body  politic 
took  place  while  they  were  colonies  of  the  British  empire." 

"By  the  Declaration  of  Independence  the  colonies  were  made 
independent  States,  as  declared  by  the  Congress."  "The  power 
of  making  laws  is  the  supreme  power  in  a  State."  "The  Continen- 
tal Congress  assumed  and  exercised  sovereign  powers,  and  was  a 
revolutionary  government,  acquiesced  in  by  the  colonies." 

In  speaking  of  our  system  of  federal  and  state  governments,  it  is 
represented  as  the  "unity  of  nationality,  and  yet  diversity  of  na- 
tionality." "An  indestructible  Union,  composed  of  indestruct- 
ble  States."  "The  States,  though  declared  to  be  sovereign  and  in- 
dependent, were  never  so  in  their  individual  character."  "The 
powers  of  sovereignty  are  divided  between  the  government  of  the 
Union  and  those  of  the  States.  They  are  each  sovereign  with  ref- 
erence to  the  objects  committed  to  it."  "The  residuum  of  of  sov- 
ereignty is  deposited  by  the  (Constitution  in  the  States."  The  Con- 
stitution in  the  States  "was  the  creation  of  the  people  of  the  coun- 
try, acting  as  such  in  the  exercise  of  their  high  prerogative  as  a 
nation.'     "The  Constitution  was  a  creation   of  the  whole  people 


52  OUR    FEDERAL    RELATIONS. 

of  the  United  States  in  their  aggregate  collective  capacity,  as  the 
one  people  of  one  nation  or  state."  "The  present  government  of 
the  United  States  is  the  representation  of  the  national  govern- 
ment, that  always  existed  over  the  American  people  in  some  shape." 
The  acts  of  Congress,  and  of  the  Legislatures  of  the  States  are 
spoken  of  as  the  exercise  of  sovereign  powers.  It  is  said  that 
practically  sovereignty  is  vested  in  the  voters.  These  expressions, 
extracted  from  the  writings  of  Marshall,  Storey,  Kent,  Wharton, 
Cooley,  and  others,  represent  conclusions  drawn  from  the  facts  of 
history,  and  from  provisions  in  the  constitutions,  federal  and 
state,  and  from  views  entertained  of  the  nature  of  the  preceding 
governments.  They  are  for  the  most  part  theoretical  generalities, 
not  calculated  to  convey  definite  ideas  to  the  enquiring  student  of 
American  governments.  Those  who  use  such  expressions,  assume 
that  the  people  in  mass  of  all  the  States  was  the  sovereign  power 
that  created  the  Constitution  of  the  United  States,  and  that  they 
thereby  erected  a  consolidated  government,  and  not  a  federation, 
as  it  certainly  was  previously..  My  purpose  is  to  show  that  it  cre- 
ated a  federative  government  by  a  compact  between  sovereign 
States,  without  diminishing  or  destroying  the  separate  and  dis- 
tinctive sovereignty  of  any  one  or  all  of  the  States;  that  it  is 
shown  to  be  federative  by  the  independent  States  adopting  it  as 
parties  to  it;  by  the  antecedent  and  contemperaneous  facts  leading 
to  its  adoption;  by  its  organic  structure,  mode  of  action  and 
amendment,  and  by  its  being  a  creature  of  delegated,  limited 
powers,  dependent  on  the  States  for  its  perpetuation.  The  subject 
of  sovereignty  has  been  selected  as  a  theme,  a  proper  discussion 
of  which,  will  lead  to  the  developemnt  of  more  definite  ideas  in 
regard  to  the  history  and  nature  of  our  governments.  What  will 
be  said  will  be  in  the  spirit  of  philosophic  investigation,  and  not 
in  that  of  partisan  political  bias. 

In  treating  of  the  subject  of  political  sovereignty,  the  first  re- 
quirement is,  to  understand  its  nature,  how  it  is  created,  and  how 
it  acts,  and  may  be  acted  on. 

The  sovereignty  of  the  whole  earth  theoretically  is  vested  in 
each  one  equally  of  all  mankind.  It  is  not  practical  for  them  to 
exercise  it,  otherwise  than  in  associations  of  people,  bound  together 
by  common  ties,  located  in  certain  territories  of  the  earth.  Sov- 
ereignty is  the  right  which  a  certain  person  has,  or  which  persons, 
few  or  many  have  to  control  all  the  individuals  in  any  one  such 
association,  and  all  of  the  objects,  capable  of  being  controlled, 
within  the  territory  occupied  by  them. 

It  is  controlled  by  no  law  or  mode  of  action  foreign  to  itself. 
It  is  a  law  unto  itself.  It  is  created  or  acquired  by  assumption, 
which  may  be  by  one  person,  by  a  few,  or  by  many  persons.  The 
acquiescence  by  all  may  be  either  voluntary  or  forced.  The  right 
may  be  assumed  after  the  consent  given,  as  in  d,  plebecite  in  France. 


OUR    FEDERAL    RELATIONS.  5J 

■» 

The  mode  is  various,  and  is  not  natural,  so  that  there  is  an  assump- 
tion of  the  right,  and  an  acquiescence  in  the  assumption.  A  per- 
son having  the  right  may  govern  directly,  and  in  person,  or  he  may 
depute  the  power  to  govern  to  others,  with  or  without  rules  for  gov- 
erning having  been  prescribed  beforehand.  More  persons  than 
one  having  conjointly  the  right,  may  prescribe  rules,  and  appoint 
persons  as  their  agents  to  execute  them.  The  mass  of  the  people, 
having  the  right  may  personally  by  joint  action  prescribe  rules  of 
action,  or  they  may  depute  the  power  to  particular  persons  to  do 
it,  and  to  others  to  execute  them.  This  sovereign  right  must  exist 
in  a  person  or  persons  of  flesh  and  blood  and  mind,  and  not  in  an 
ideal  creation  to  which  a  name  is  given  for  convenience  in  expres- 
sion. This  may  be  illustrated  approximately  by  a  corporation 
aggregate.  In  its  creation  certain  persons  by  name,  called  corpo- 
rators, are  granted  certain  powers  to  act  in  a  certain  way  with  ref- 
erence to  certain  objects,  and  the  combination  of  the  persons  thus 
formed  is  called  an  artificial  person.  That  is  not  an  entity, — a  real 
thing,  but  merely  an  invented  name  to  designate  the  organized 
combination  of  persons  clothed  with  the  powers  of  action  granted 
to  them.  The  right  to  act  was  not  granted  to  this  ideal  person,  but 
to  the  real  persons  named  in  the  charter  of  incorporation,  and  to 
their  successors,  when  organized  for  action  in  the  mode  prescribed. 
So  the  right  of  sovereignty  does  not  exist  in  any  mere  ideal  thing 
called  sovereignty,  but  in  a  real  person  or  in  persons;  and  so  the 
powers  of  government  do  not  exist  in  some  ideal  thing  called  gov- 
ernment, but  in  persons  in  whom  they  are  invested,  when  acting  in 
such  mode  of  organization,  or  otherwise  as  may  have  been  pre- 
scribed for  them.  Ours  is  not  a  government  of  constitutions  and 
laws,  as  is  sometimes  said,  but  a  government  of  men,  to  whom  the 
powers  of  governing  in  accordance  with  the  constitution  and 
Laws,  have  been  granted  by  the  sovereign  power.  Sovereignty 
must  be  a  unit  in  its  action.  It  may  be  existent  in  different  per- 
sons, or  bodies  of  persons,  composing  it.  When  they  exercise  the 
right,  it  is  by  their  united  co-operation,  in  the  accomplishment  of 
auy  one  object. 

If  two  persons  were  to  assume  the  '•ight  of  sovereignty  over  an 
organized  association  of  people,  and  e-"h  one  of  them  was  to  act 
according  to  his  own  discretion,  independently  of  the  other, 
neither  one  would  be  sovereign.  The  result  would  be  anarchy,  or 
continual  conflict.  If  they  were  to  divide  between  themselves  the 
objects  of  government,  which  each  should  have  the  absolute  right 
of  controlling  sei)arately,  in  the  government  of  the  people  of  the 
association,  then  practically  both  could  not  be  equally  sovereign. 
Because  the  various  objects  of  government  are  so  intertwined,  re- 
lated to,  and  dependent  upon  each  other,  that  no  such  division  can 
be  made,  as  could  or  would  fix  a  certainly  defined  boundary  in  the 
objects,  upon  which  each  one  of  the  persons  should   have   an  ex- 


54  OUR    FEDERAL    RELATIONS. 

elusive  province  in  his  separate  action.  And  it  would  be  totally 
impracticable  for  each  person  to  be  equally  and  absolutely  sover- 
eign over  the  objects  allotted  to  him,  if  one  of  them  was  given,  or 
assumed  and  exercised  the  right  to  determine  the  extent  of  his 
powers  of  action. 

A  person  or  persons,  having  the  right  of  sovereignty,  may  dele- 
gate to  different  persons  different  powers  of  government,  embrac- 
ing different  objects  for  the  delegated  powers  to  be  exercised  upon, 
without  any  continuous  disharmony,  or  permanent  conflict,  be- 
cause the  sovereign  right,  not  being  impaired  or  diminished,  by 
the  delegation  of  governmental  powers,  stands  ready  at  discretion 
to  check  or  confine  the  delegated  powers,  coferred  on  the  different 
persons,  or  bodies  of  persons,  within  the  sphere  of  action  assigned 
to  them;  just  as  a  principal,  having  a  great  diversity  of  business,  in 
the  management  of  his  private  affairs,  may  appoint  different 
agents  to  transact  different  parts  of  it,  under  powers  of  attorney 
given  to  each  of  them,  the  abuse  or  usurpation  of  unauthorized 
power  by  any  of  his  agents  may  be  checked,  or  corrected  by  the 
principal.  But  if  the  different  agents  were  given  general  and  in- 
definite powers,  embracing  the  same  objects  in  part,  and  set 
adrift,  without  the  control  of  the  principal,  to  engage  in  a  scram- 
ble for  the  extension  of  their  powers,  by  direct  or  indirect  action, 
it  would  be  an  accident  if  some  one  agent,  having  the  greatest 
force  of  character  and  influence,  did  not  usurp  the  powers  of  the 
others,  and  place  them  in  a  subordinate  position  in  the  discharge 
of  their  powers. 

The  distinction  must  be  kept  in  mind  between  the  right  of  sov- 
ereignty, existing  and  abiding  in  certain  persous,  and  the  powers 
of  government  granted  by  them  to  some  part  of  themselves,  or  to 
other  persons,  who  constitute  no  part  of  the  sovereignty.  This 
may  be  illustrated  by  reference  to  the  system  of  government  in 
England.  There  the  right  of  sovereignty  exists  in  "the  three  es- 
tates of  the  realm,"  to-wit:  in  the  persons,  who  may  for  the  time 
be  the  king,  and  those  who  may  compose  the  House  of  Peers  and 
House  of  Commons, — each  estate  being  created,  and  acting  ac- 
cording to  its  own  mode  of  existence  and  of  action,  separately; 
and  all  concurring  in  their  action  upon  any  one  object  to  be  ac- 
complished, or  principle  in  government  to  be  established.  Thus 
their  concurrent  action  constitutes  a  combined  unit  in  an  act  of 
sovereignty  by  them. 

The  king  by  immemorial  custom,  which  is  tantamount  to  a  grant 
of  power  by  the  sovereignty,  exercises  powers  of  government 
separately,  which  however  may  be  changed  or  even  taken  away 
from  him  entirely,  by  the  united  action  of  those  constituting  the 
sovereignty.  Some  of  these  powers  of  government  are  the  execu- 
tion of  the  laws,  by  commissioned  officers  to  perform  duties  under 
the  laws,  to  grant  to  persons  the  vacant  unappropriated  domain  of 


OUR    FEDERAL    RELATIONS.  55 

the  empire,  and  to  grant  charters  of  incorporation,  such  as  were 
granted  to  the  persons  who  established  the  American  colonies, 
and  corporations,  and  franchises  of  various  kinds.  The  power  to 
execute  the  laws  carries  with  it  from  necessity  the  delegation  of 
the  power  to  judges  to  administer  the  laws  in  the  several  courts. 
All  such  powers  granted  to  the  king,  and  through  him  to  others,  are 
govermental  and  not  sovereign  powers,  that  may  be  altered  or 
abrogated  by  the  sovereign  power,  according  to  its  discretion. 

The  right  of  sovereignty  of  a  people  may  be  annihilated  by  force, 
as  in  the  case  of  Poland,  and  also  in  that  of  Southern  States,  after 
the  late  civil  war.  It  may  also  be  merged  with  another,  as  in  the 
case  of  Scotland,  by  the  union  with  England,  or  gradually  lost  by 
submission  to  the  aggressions  of  some  other  power. 

The  origin  of  the  leading  characteristics  of  most  states  or  na- 
tions may  be  traced  back  to  an  early  period  of  their  existence, 
however  much  they  may  have  been  changed  in  the  manner  of  be- 
ing exhibited  by  the  intervening  circumstances,  attending  iheir 
progress  through  time.  Much  that  distinguishes  England  of  to-day 
in  her  love  of  freedom  at  home,  and  in  her  conquest  for  profit 
abroad,  by  sea  and  on  land,  may  be  traced  back  to  the  three  little 
tribes  on  the  continent,  the  Anglaise,  Saxons  and  Jutes,  that  for- 
cibly took  possession  of  her  territory.  Though  Mexico  has  had  a 
republican  form  of  government,  patterned  in  a  degree  after  that  of 
the  United  States  of  the  North,  for  more  than  sixty  years,  its  most 
prominent  feature  now  is  the  centralism,  impressed  upon  it  by  the 
royalty,  while  a  part  of  the  Spanish  dominions. 

So  with  the  States  of  our  Union,  all  of  whose  leading  character- 
istics, as  governments,  originated  from  the  charter-governments  of 
the  colonies,  while  they  were  under  the  sovereignty  of  Great 
Britain,  which  existed  over  them,  from  their  first  settlement,  until 
after  the  commencement  of  hostilities  in  1775. 

Our  federal  government  had  its  origin  in  the  union  of  some  of 
the  colonies  in  1643,  1690  and  1754,  for  co-operation  in  defense 
against  the  Indians  and  French,  and  afterwards  when  co-operation 
was  sought  to  obtain  relief  from  the  imposition  of  taxes  upon  them 
by  the  mother  country,  in  the  Congresses  of  1765,  1774-5-6,  and 
in  each  year  thereafter  until  and  after  the  formation  of  the  Federa- 
tion by  the  Articles  of  Confederation.  All  this  was  only  a  co- 
operation by  and  as  distinct  governments,  acting  together  for  some 
common  object,  and  was  never  a  political  union  of  their  people 
in  one  association  ol  government.  At  every  stage  in  this  progres- 
sion, the  principle  of  representation,  either  in  co-operation  or  in 
govermental  action  was  adopted  and  practiced. 

The  expression  in  the  10th  amendment  to  the  Constitution  of 
the  United  States,  that,  "the  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people,"  in  its  neces- 


56  OUR    FEDERAL    RELATIONS. 

sary  implication,  that  the  powers,  that  had  been  granted  to  the 
government  of  the  United  States  by  the  States,  were  only  delegated 
powers,  and  was  nothing  new,  then  brought  to  view,  in  giving 
shape  to  the  government  created  by  the  Constitution.  It,  in  sub- 
stance, was  as  old  as  Ihe  first  colonial  charter  that  was  granted,  and 
gave  shape  and  character  to  every  agency  and  government,  that 
had  acted  for  the  American  people  in  their  public  affairs.  It  was 
the  theory  of  English  government,  that  the  vacant  unappropriated 
lands,  within  the  domains  of  the  empire,  belonged  to  the  king, — 
subject  to  be  granted  to  persons  by  him,  in  his  official  capacity, 
but  as  one  of  the  estates  of  the  realm,  holding  and  granting  them 
for  and  on  behalf  of  the  government  of  which  he  was  the  instru- 
ment, in  his  royal  capacity.  On  the  same  principle  he  granted 
charters  of  incorporation  to  persons.  This,  however,  was  not  an 
irrevocable  act  of  sovereignty.  For  the  parliament,  composed  of 
king,  lords  and  commons,  by  their  concurrent  action  as  matter  of 
right  and  power  could  change,  repeal,  or  annul  any  charter  that  might 
have  been  granted  by  the  king.  The  English  government  claimed 
them  as  "crown  lands,"  by  right  of  discovery.  This  proprietorship  of 
the  lands  was  given  to  them,  to  enable  them  to  convey,  and  settle 
colonists  within  their  respective  grants  of  territory, — thereby  ac- 
complishing an  object  of  public  benefit  to  England,  in  the  exten- 
sion of  its  dominions,  and  the  increase  of  its  commerce. 

These  colonial  charters  provided  for  some  sort  of  representative 
body,  to  whom  was  delegated  the  power  to  enact,  and  have  exe- 
cuted such  laws  for  the  local  government  of  the  colonists,  as  were 
suitable  to  their  condition  and  wants,  conforming  therein  as  near- 
ly as  practicable  to  the  laws  of  England.  In  the  course  of  time 
these  colonial  governments  assumed  the  shape  of  local  self-sup- 
porting governments,  composed  of  a  legislative  assembly,  elected 
by  qualified  voters,  and  a  governor,  appointed  by  or  through  the 
king's  royal  authority,  and  a  local  judiciary,  and  other  officers  to 
carry  on  the  governments.  In  this  condition  they  were  generally 
found,  when  the  dispute  arose  between  them  and  the  English  gov- 
ernment, on  the  subject  of  taxing  America,  by  the  English  Parlia- 
ment. During  all  this  time,  through  the  full  period  of  a  century, 
neither  the  people,  nor  their  officers,  administering  their  govern- 
ments, possessed  the  right  of  sovereignty.  The  people  in  the  elec- 
tion of  their  officers,  and  the  officers  in  the  exercise  of  their  duties, 
all  acted  under  powers  delegated  to  them  to  carry  on  the  local 
governments,  that  had  been  granted  by  the  sovereign  power  in 
England  through  the  king  by  charters.  England  was  generally- 
satisfied  with  the  benefit  of  a  monopoly  of  the  colonial  trade, 
established  by  the  navigation  laws,  and  the  creation  of  a  board  of 
trade,  to  effectually  carry  them  out.  The  great  expense  incurred 
in  the  Indian  and  French  war  in  America,  previous  to  1765,  in- 
duced the  parliament  to  deem  it  proper  to  levy  a  tax  upon  certain 


OUR    FEDERAL    RELATIONS.  57 

articles,  imported  into  the  colonies,  to  be  collected  and  applied, 
not  to  the  support  of  the  colonial  governments,  but  to  be  kept  and 
used  as  general  revenue  in  the  English   treasury. 

It  was  this  tax,  that  the  colonies  objected  to.  ^To  remonstrate 
against  it,  their  legislative  assemblies  appointed  commissioners  or 
delegates  to  meet  together,  and  act  as  a  body,  in  making  their  re- 
monstrance. The  assemblage  of  persons  thus  convened  was  called 
a  Congress.  The  word  Congress,  as  then  and  long  afterwards  used, 
meant,  according  to  its  literal  import,  the  coming  together  of  the 
agents  of  the  colonies,  and  did  not  mean,  as  it  would  now  be  under- 
stood, the  assemblage  of  a  legislative  body  in  a  government.  The 
delegates  that  convened  in  the  Congress  in  September,  1774,  at 
Philadelphia,  were  separately  by  each  colony  commissioned,  "with 
authority  and  direction  to  meet,  and  consult  together  for  the  com- 
mon welfare."  That  Congress  in  defining  the  political  position  of 
British  subjects  in  America,  passed  resolutions,  declaring  that 
"from  the  necessity  of  the  case,  and  in  regard  to  the  mutual 
interests  of  both  countries,  they  cheerfully  consented  to  the  oper- 
ation of  such  acts  of  the  British  parliament  as  were  bona  fid.e 
restrained  to  the  regulation  of  their  general  commerce,  for  the 
purpose  of  securing  the  commercial  advantages  of  the  whole 
empire  to  the  mother  country,  and  the  commercial  benefits  of  its 
respective  members:  excluding  every  idsa  of  taxation  for  raising  a 
revenue  on  the  subjects  in  America  without  their  consent."  Thus 
they  acknowledged  themselves  to  be  subjects  of  the  British  em- 
pire, but  dissented  only  to  the  claim  of  parliament  to  tax  them  to 
raise  revenue  for  the  empire,  because  they  were  not  represented  in 
parliament, — because  it  would  be  a  flagrant  abuse  of  power,  not 
warranted  by  the  fundamental  principles  of  the  English  govern- 
ment, that  taxes,  for  general  revenue,  for  the  support  of  the  gov- 
ernment, were  voluntary  assessments,  granted  by  the  people,  or 
their  representatives  in  parliament.  As  the  colonists  had  not  given 
their  consent  to  them  by  representatives  in  parliament  (having 
none  there),  nor  by  their  representatives  in  their  colonial  legis- 
latures, the  imposition  of  such  taxes  upon  them  by  the  British 
parliament  would  be  forced  exactions,  which  might  be  increased 
to  an  extent  that  would  impoverish  them  without  any  peaceable 
remedy  for  their  relief. 

To  submit  to  this  would  be  a  surrender  of  the  measure  of  their 
prosperity,  and  even  that  of  the  means  of  their  livelihood,  as  a 
people,  to  the  discretionary  will  of  a  body  of  persons,  foreign  to 
themselves,  over  whom  they  could  have  no  control,  who  would  be 
interested  in  diminishing  their  own  burdens,  just  in  proportion  as 
they  would  increase  the  burdens  upon  the  colonists.  This  Con- 
gress, as  a  peaceful  means  of  redress,  sought  to  make  the  tax  fruit- 
less, by  advising  the  colonists,  as  individuals,  to  personally  refrain 
from  importing,  purchasing,  or  using  the  articles,  thus  taxed.    The 


58  OUR    FEDERAL    RELATIONS. 

voluntary  compliance  with  this  advice  by  the  people  as  individuals, 
with  some  aggravating  circumstances,  brought  on  the  commence- 
ment of  hostilities  and  inaugurated  the  war  near  Boston,  in  Massa- 
chusetts. In  all  this  they  acted  as  mere  agents  for  the  separate 
colonies  respectively  represented  by  the  delegates. 

In  this  condition  of  affairs  the  delegates  convened  in  Congress 
in  May,  1775,  with  increased  powers  conferred  on  them,  for  action 
as  well  as  consultation  and  advice.  They  were  instructed  to  "con- 
cert, agree  upon,  direct,  order  and  prosecute  such  measures,  as 
they  deemed  most  fit  and  proper,  to  obtain  redress  of  American 
grievances."  Very  soon  after  their  meeting,  they  appointed  Gen, 
Washington  commander  in  chief  of  the  colonial  forces,  called 
upon  the  respective  colonies  for  troops,  emitted  bills  of  credit, 
(called  continental  money),  upon  the  faith  of  their  payment  by 
the  colonies.  The  period,  between  this  meeting  of  Congress  and 
the  4th  of  July,  1776,  may  be  denominated  the  transition  period, 
in  regard  to  the  location  of  sovereignty. 

Very  soon  after  hostilities  commenced,  the  colonies  commenced 
to  act  independently  in  the  control  of  their  own  public  affairs,  and 
in  their  co-operative  efforts  under  the  advice  and  direction  of  their 
agents  in  Congress.  The  absolute  control  thus  assumed  was  pro- 
visional; that  is,  dependent  upon  the  future  events,  either  of  a 
reconciliation  with  the  mother  country,  that  they  still  hoped  for, 
or  of  the  forming  of  a  more  perfect  government,  if  an  honorable 
pacification  could  not  be  effected. 

During  this  period,  Lord  Howe  appeared  with  a  naval  armanent 
off  the  coast,  and,  on  behalf  of  England,  sought  an  interview  first 
with  Washington,  and  afterwards,  with  three  commissioners  ap- 
pointed by  the  Congress,  who  were  Dr.  Benj.  Franklin,  John 
Adams  and  Edward  Rutledge.  But  as  he  would  not  recognize 
their  official  position,  no  negotiations  for  pacification  were  entered 
into.  After  all  hopes  of  peace  had  been  abandoned.  Congress 
advised  the  colonies  to  take  steps  at  once  to  organize  such  gov- 
ernments, based  upon  the  sovereignty  of  the  people  in  each  colony,  as 
were  necessary  for  the  independent  action  of  each;  and,  in  pursu- 
ance to  that  advice,  every  one  of  them  occupied  that  position  on 
or  before  June  1776;  four  of  them,  New  Hampshire,  South  Caro- 
lina, Virginia  and  New  Jersey  had,  by  delegates  in  conventions, 
adopted  State  Constitutions,  previous  to  the  4th  of  July,  1776,  and 
the  others  were  taking  steps  that  resulted  in  their  doing  it,  except 
Rhode  Island,  that,  for  a  long  time,  carried  on  its  government  un- 
der its  royal  charter,  and  all  of  them  in  fact  were  then  acting  as 
independent  governments  internally,  in  defiance  of  the  former 
sovereign  power  of  England.  So  that,  when  the  Congress,  on  the 
4th  day  of  July,  1776,  declared  "that  these  United  Colonies  are, 
and  of  right  ought  to  be,  free  and  independent  States,"  they  sim- 
ply announced  an  existing  fact,  as  their  agents,  and  on  their  behalf. 


OUR    FEDERAL    RELATIONS.  59 

Their  declaration  did  not  make  them  so,  as  is  sometimes  said, 
by  any  right  of  sovereignty,  either  possessed,  or  assumed,  by  the 
Congress  then  making  "The  Declaration  of  Independence." 

Ic  forming  State  Constitutions,  each  one  of  the  colonies  declared 
that  "the  people  of  this  State  have  the  sole  and  exclusive  right  of 
governing  themselves,  as  a  free,  sovereign  and  independent  State," 
some  of  them  expressly  and  all  of  fhem  by  the  use  of  terms,  con- 
veying the  same  meaning  in  substance.  From  this  time  until  the 
4th  day  of  March,  1789,  when  the  present  United  States  Constitu- 
tion went  into  effect,  the  right  of  sovereignty  was  in  the  people  of 
each  State,  as  separate  independent  communities.  Some  embar- 
rassment in  the  action  of  Congress  having  been  experienced,  from 
the  fact  that  the  separate  commissions  of  tha  delegates  were  differ- 
ently expressed,  a  necessity  was  felt  for  the  adoption  of  an  agree- 
ment by  all  of  the  States,  in  which  the  authority,  delegated  by 
each  State,  should  be  the  same,  and  that  larger,  and  more  specific 
powers  should  be  granted  to  them.  To  accomplish  this,  the  Con- 
gress prepared  "The  Articles  of  Confederation"  and  submitted 
them  to  the  legislatures  of  each  and  all  of  the  States  in  1777, 
which  were  finally  adopted  by  all  of  the  States  on  the  ist  day  of 
March, 1781. 

This  made  no  change  of  the  status  of  the  sovereignty  of  the 
States  whatever.  For  in  the  2d  Article  it  is  declared,  that  "each 
State  retains  its  sovereignty,  freedom  and  independence."  (This 
clause  will  be  referred  to  again  and  be  given  entire.)  Congress 
having  appointed  commissioners  for  the  purpose,  a  treaty  of  peace 
was  concluded  in  1783,  in  which  the  freedom  and  independence 
of  the  thirteen  States,  by  name  as  New  Hampshire,  Massachusetts, 
etc.,  were  acknowledged.  Congress  continued  to  act  under  the 
Articles  of  Confederation,  just  as  it  did  in  the  main,  when  the 
delegates  had  separate  authorities  given  to  them  by  each  State. 
The  delegates  representing  the  Colonies  on  the  4th  of  July,  1776, 
continued  to  act  for  the  States  afterwards,  without  any  commis- 
sions, and  the  same  delegates,  repiesenting  the  States  on  the  1st 
March,  1781,  continued  likewise  to  act  under  the  Confederation. 
On  all  important  subjects,  each  State  had  one  vote  only.  Neither 
the  Congresses,  before  or  after  the  Federation,  had,  or  assumed  to 
have,  or  to  exercise  any  right  of  sovereign  power,  but  only  such 
powers  as  had  been  delegated  to  them  respectively.  If  at  any 
time  they  exceeded  their  authority  in  their  action,  as  they  proba- 
bly did,  when  they,  in  effect,  made  General  Washington  Supreme 
Dictator  for  a  time,  it  was  on  the  principle,  that  any  agent  might, 
upon  some  pressing  emergency,  act  in  excess  of  his  authority,  un- 
der the  expectation  that  his  principal  would  ratify,  or  knowingly 
acquiese  in  such  act. 

The  term  delegates,  and   their   act  of  representing  their  States 
and  not  themselves  in  Congress,   rebuts  any  possibility  of  a  con- 


,6o  OUR    FEDERAL    RELATIONS. 

elusion,   that    Congress   had    any    inherent    right   of  sovet  ^jIs 
Fortunately  there  is  one  of  the  Articles  in  the  Confederatit   t.^'. 
makes  a  clear  distinction,  between  the  ri'g/i/  of  sovereignty,  "'.ja- 
in  the  people  of  each  of  the  States,   and  the  powers  of  gov  e    .-..uu^ 
action,  delegated  to  the  Congress  by  them.     It  is  as  follow^:  "Art. 
2.     Each  State  retains  its  ssovereignty^  freedom,  and  independence, 
and  tv try  power,  jurisdiction  and  right,  which   is  not  by  this  con- 
federation, expressly  delegated    to    the   United  States  in  Congress 
assembled."  ("The  United  States  of  America"  was  the  name  given 
in  Art.   i    to   the   Confederation.)     That  is,   each  State  retains. its 
sovereinty  complete,  but  deles;ates  certain  powers,   jurisdictions, 
and  rights  to  the  United  States  in  Congress,  to  be  exercised  by  the 
delegates  of  each  and  all  of  the  States  in  Congress,   in   the  mode 
indicated  in  the  Articles,    for  and  on    behalf  of  all    of  the    States 
united. 

During  the  existence  of  the  Federation,  Virginia  by  an  act  of 
its  legislature,  Dec.  20th,  1783,  authorized  the  transfer  of  the 
Northwestern  territory  to  "the  United  States  in  Congress  assembled, 
for  the  benefit  of  said  States."  The  deed  of  cession  thus  authorized 
to  be  made  by  her  delegates  in  Congress,  Thomas  Jefferson,  Sam- 
uel Hardy,  Arthur  Lee,  and  James  Monroe,  contains  the  expression 
reciting  the  transfer  to  be  made  to  "the  United  States  in  Congress 
assembled,  for  the  benefit  of  said  States,  Virginia  included." 
Showing  that  the  Congress  was  made  the  agent  or  trustee  for  the 
management  of  the  territory  ceded,  for  the  benefit  of  the  whole  of 
the  States  collectively. 

Thus  has  it  been  shown  that,  up  to  the  4th  of  March,  1789,  when 
the  present  government  went  into  operation,  with  Washington  as 
the  President,  all  the  powers  of  government,  that  had  ever  been 
exercised,  in  any  assembly,  or  agency  whatever,  for,  or  on  behalf 
of  the  people  in  America,  were  delegated  powers,  except  only  in 
the  exercise  of  the  sovereignty  of  the  people  in  each  one  of  the 
colonies,  in  the  acts  of  forming  their  State  Constitutions,  by  which 
each  one  of  them  assumed  to  be  a  sovereign,  free  and  independ- 
ent State. 

The  word  state,  as  then  used,  meant  an  association  of  people, 
which  embraced  a  sovereign  power  for  its  control,  as  a  separate 
nation,  amongst  the  nations  of  the  earth.  England  was  spoken  of 
as  a  state,  and  likewise  France,  and  other  independent  European 
powers.  It  did  not  then  have  the  meaning,  often  attributed  to  it 
now  in  the  United  States,  as  being  a  subordinate  body  politic. 

The  powers  delegated  to  the  Congress,  in  the  Articles  of  Con- 
federation,  were  in  the  main  only  such  as  they  could  execute  for 
the  States,  in  carrying  on  the  war.  As  soon  as  the  war  was  ended, 
the  Congress  had  but  little  to  do  within  the  scope  of  its  powers. 
It  had  no  power  to  levy  and  collect  taxes  for  the  purpose  of  pay- 
ing the  debts,  that  had  been  incurred,  or  to  defray  its  ordinary  ex- 


OUR    FEDERAL    REIATJOJNS.  6l 

Xh  Indeed,  to  the  extent  of  the  powers  that-eaabled  it  to  act 
^y  a  it  was  a  government  of  imperfect  obligation,  dependent 
Con  ^^  States  to  furnish  the  means  necessary  for  its  action.  It 
^rotJ'^  ianger  of  a  collapse,  from  the  neglect  of  the  States.  This 
caused  delegates  to  be  appointed,  by  the  legislatures. of  the  several 
States,  with  authority  to  meet  fogether  in  convention,  and  revise, 
and  amend  the  Articles  of  Confederation,  so  as  to  make  a  more 
perfect  or  efificient  government  for  the  union  of  the  States 

The  Constitution  of  the  United  States  was,  by. the  convention 
agreed  upon,  and  afterwards  ratified  by  the  people  of  each  State 
separately,  through  their  delegates  in  convention  assembled,  in 
each  one  of  the  States.  Its  ratification  was  an  act  of  sovereignty, 
performed  by  the  people  of  each  State,  acting  separately.  All  of 
the  States  having  done  the  same  thing,  the  same  powexS  of  govern- 
ment were  thereby  delegated,  by  each  and  all  of  theno,  to  the  de- 
partments of  a  government  "for  the  United  States  of  America." 
By  this  sovereign  act  of  ratification,  each  one  of  the  States  with- 
drew from  its  State  government  some  powers  that  it  had  previous- 
ly delegated  to  it,  and  from  the  United  States  of  America  as  a  con- 
federation, those  powers  that  had  been  delegated  ito  them,  and 
delegated  them  to  the  departments,  legislative,  executive  and 
judicial  of  the  new  government,  then  and  thereby  instituted,  for 
the  same  United  States  of  America,  that  had  formed  the  Confed- 
eracy. 

By  this  means  each  State,  in  the  exercise  of  its  sovereignty,  had 
delegated  powers  of  government  to  two  separate  and  distinct  gov- 
ernments, each  of  which  should  act  directly  on  all  of  the  people 
of  the  State  to  the  extent  of  the  powers  allotted  to  it  in  the  division. 
This  ratification  did  not  have  the  effect  to  impair  ox  destroy,  in 
whole  or  in  part,  the  right  of  sovereignty  of  the  people  of  each 
State.  In  delegating  to  those  persons  and  bodies,  who  should  fill 
the  different  departments  of  this  government  of  the  United  States, 
certain  specified  governing  powers,  the  right  of  sovereignty  was 
not  conferred  upon  it,  any  more  than  it  was  in  the  former  shape  of 
the  government  of  the  United  States,  called  a  confederation. 
Though  the  delegation  to  this  was  directly  by  the  people  of  each 
State,  still,  in  both  cases,  it  was  equally  but  a  delegation  of  powers, 
which  necessarily  implied  the  continued  existence. of  a  superior 
power,  that  made  the  delegation.  The  granting  of  more  enlarged 
powers  of  government  did  not  change  the  relation  of  the  grantor 
to  the  thing  receiving  the  grant.  The  assumption,  that  the  right 
of  sovereignty  was  conferred  upon  the  federal  government,  would 
contradict  the  American  doctrine,  that  it  exists  and  ^^'"ii:>  alone 
in  the  people;  for  it  could  not  at  the  same  time  be  in  the  people, 
and  in  those  persons  and  bodies  of  persons  to  whom  governing 
powers  have  been  delegated.  Here  again,  we  see  illustrated  the 
oft-repeated    distinction,    made    in    the   previous   governments  in 


62  OUR    FEDERAL    RELATIONS. 

America,  between  the  right  of  sovereignty  retained  and  the  powers 
of  government  delegated.  And  this  distinction  would  be  equally 
the  same,  whether  it  was  made  by  the  aggregate  mass  of  people, 
in  the  territory  of  all  the  States,  or  by  the  people  of  each  State 
separately,  as  it  was  in  fact;  and  whether  it  was  done  by  the  one, 
or  by  the  other,  the  powers  of  government  delegated,  and  the 
nature  of  the  government  created,  would  be  the  same.  All  sorts 
of  delegation,  representation,  or  deputation,  whether  thereby  a 
government,  a  corporation,  or  a  mere  personal  agency  is  created, 
are  dependent  upon  some  subsisting  superior  power,  for  their  cre- 
ation and  continued  existence. 

It  is  contended  by  many  persons  that  the  people  of  each  State, 
in  the  act  of  ratifying  the  Constitution  of  the  United  States,  lost  a 
part  of  their  right  of  sovereignfy,  as  it  before  was  possessed  by 
them,  and  merged  it  into  an  equal  portion  of  the  sovereignties  of 
each  and  all  of  the  other  States,  and  thereby,  to  the  extent  of  th« 
powers  and  objects  of  government  specified  in  the  Constitution  of 
the  United  States,  all  the  people  within  the  territory  of  all  of  the 
States,  by  mutual  agreement,  formed  themselves  into  one  body 
politic,  as  one  people,  one  State,  one  nation,  and  it  was  from 
them  in  their  aggregate  mass  as  one  people,  that  the  powers  were 
delegated,  instituting  the  government  of  the  United  States.  This 
government  could  have  been  instituted  with  all  of  the  power 
granted  to  it,  just  as  well,  by  each  one  retaining  the  right  of  sov- 
ereignty, as  was  done  when  the  United  States,  as  a  confederation, 
was  instituted  only  a  few  years  previously,  as  by  dividing  the  sov- 
ereignty of  each,  if  such  a  thing  were  possible  to  be  done.  There- 
fore the  division,  if  it  really  took  place,  was  a  useless  and  funda- 
mental change  in  the  sovereign  right  of  each  State,  in  a  mode  dif- 
fering from  all  previous  precedents  and  practice,  in  making  gov- 
ernments in  America.  In  view  of  the  previous  precedents,  it  is 
easy  to  understand  how  the  people  of  a  sovereign  State  could 
grant  powers  to  two  governments,  on  different  subjects,  acting  on 
the  same  people  in  the  States,  just  as  they  could  divide  the  powers 
of  the  State  government  into  three  distinct  departments,  legisla- 
tive, executive,  and  judicial.  But  it  may  not  be  so  easy  to  per- 
ceive how  a  person  in  a  State  could  be  a  unit  in  the  sovereignty  of 
two  associations  of  people,  composed  of  different  bodies  of  per- 
sons or  a  unit  in  two  half  or  fractional  sovereignties. 

The  question  is,  did  the  ratification  have  such  effect?  Did  each 
of  the  thirteen  States  mutilate  the  sovereign  body  politic  of  each, 
and,  out  of  the  part  severed,  fabricate  another — the  fourteenth 
State,  or  nation,  called  the  United  States  of  America?  Did  they 
intend  to  do  such  a  thing,  unheard  of,  and  unknown  in  all  history 
of  mankind,  unnecessary,  and  destructive  of  their  dearly  cherished 
absolute  sovereign  right  ?     To  maintain  the   affirmative,  reference 


OUR    FEDERAL    RELATIONS.  63 

is  made  to  the  preamble  of  the  Constitution,  which  reads  as  fol- 
lows : 

^'■Preamble. — We,  the  people  of  the  United  States,  in  order  to 
form  a  more  perfect  union,  establish  justice,  insure  domestic  tran- 
quility, provide  for  the  common  defense,  and  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  ourselves,  and  our 
posterity,  do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America." 

The  preamble  of  an  instrument  has  no  intrinsic  binding  force  as 
a  part  of  it,  but  may  be  used  to  throw  light  upon  what  may  be  of 
doubtful  import  in  terms  used  in  the  body  of  the  instrument.  But, 
giving  all  the  force  that  can  be  attributed  to  a  preamble,  it  does 
not  establish  the  position  contended  for  to  the  destruction  of  sep- 
arate State  sovereignty,  when  properly  understood.  The  first  arti- 
cle in  the  Articles  of  Confederation  is  as  follows  : 

"  Art.  I.  The  style  of  this  Confederacy  shall  be  "  The  United 
States  of  America."  And  in  the  Declaration  of  Independence  it 
is  said  :  "  We,  therefore,  the  Representatives  of  the  United  States 
of  America."  When  thus  used  it  meant  the  American  States 
united;  for  they  were  declared,  and  all  and  each  of  them  declared 
themselves  then  to  be  sovereign,  free  and  independent  States,  in 
forming  their  Constitution,  and  acted  accordingly. 

I'hat  government  of  the  United  States  existed  at  the  time  the 
Constitution,  with  the  above  recited  preamble^  was  framed  by  the 
convention,  and  ratified  by  the  people  of  each  State,  and  indeed 
some  time  afterwards,  until  the  4th  of  March,  1789,  when  the 
present  government  was  organized.  The  term,  United  States, 
was  sometimes  used  as  the  name  of  the  government  created  by  the 
Constitution,  as  in  the  clause  guaranteeing  the  States  a  republican 
form  of  government;  but  that  government  was  not  in  existence  un-. 
til  the  4th  of  March,  1789.  Now,  if  we  put  the  words  of  the  pre- 
amble in  the  mouths  of  the  people  of  each  State,  when  they  were 
in  the  act  of  ratifying  the  Constitution  in  convention,  and  they 
should  say,  "We,  the  people  of  the  United  States,"  would  they  be 
understood  to  mean  that  they  were  the  people  of  the  then  existing 
United  States,  or  the  people  of  the  United  States,  that  was  to  be 
the  name  of  a  government  that  might  or  might  not  at  some  future 
time  exist?  They  evidently  designed  to  express  that  which  was  a 
fact,  then  existing,  when  they  in  effett  uttered  the  words.  And  it 
is  equally  certain,  that  the  delegates  in  the  convention  that  framed 
the  Constitution,  understood  the  expression  in  the  same  way.  By 
reference  to  Elliot's  Debates,  it  will  be  seen  that  the  preamble, 
when  adopted  by  the  convention,  read,  "We,  the  people  of  the 
States  of  New  Hampshire,  Massachusetts,"  etc.  (naming  the  thir- 
teen States),  and  that  the  committee  of  revision,  whose  ofhce  was 
merely  literary,  caused  it  to  be  altered,  because  some  of  the  thir- 
teen States  might  not  ratify  the  Constitution,  which  proved   to  be 


l64  OUR    FEDERAL    RELATIONS. 

a  true  expectation,  as  to  two  of  them,  until  after  the  government 
was  organized.  Further,  in  the  preamble  it  is  said,  "We,"  etc., 
"do  ordain  and  establish  this  Constitution  for  the  United  States 
of  America,"  meaning  for  the  States  then  united,  subject,  of  caurse, 
as  provided  elsewhere,  that  they  ratified  it,  and  to  take  effect,  as 
to  any  nine  of  them,  if  that  many  should  ratify  it. 

The  preamble  says,  "We,  the  people  of  the  United  States,  to 
form  a  more  perfect  union,"  etc.  A  more  perfect  union  of  the 
States,  than  the  union  of  States  formed  by  the  Confederation, 
Union  was  the  then  usual  and  proper  term  to  be  used  to  connect 
States,  under  a  common  form  of  government  of  delegated  powers, 
as  was  done  before  in  the  Articles  of  Confederation,  but  not  to 
connect  people  as  individuals  in  a  sovereign  association,  in  mass, 
nor  was  it  so  used  in  any  of  the  State  constitutions.  That  it  was  a 
union  between  them  as  States  is  shown  by  expressions  in  the  body 
of  the  Constitution:  "Art.  7.  The  ratification  of  the  conventions 
of  nine  States  shall  be  sufficient  for  the  establishment  of  this  Con- 
stitution between  them."  That  is  not  by  or  over  them  as  one  peo- 
ple, but  between  them  as  States. 

"Art.  3.  Sec.  3.  Treason  against  the  United  States  shall  con- 
sist only  in  levying  war  against  them,  or  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort."  Why  "only  in  levying  war 
against  them?''''  Because  treason  is  an  offense  against  a  sovereign 
power,  and  that  is  the  reason  it  did  not  say  that  levying  war 
against  the  government  of  the  United  States  would  be  treason. 

The  federation,  though  a  government,  was  a  compact  between 
sovereign  States  in  express  terms.  The  people  of  the  several 
States  reaiodeled  their  government,  by  granting  the  additional 
powers,  that  would  remedy  its  defects,  and  declared  that  if  ratified 
by  nine  States  it  would  be  "the  establishment  of  this  Constitution 
between  the  States  so  ratifying  the  same." 

The  terms,  in  the  preamble,  having  been  explained,  and 
some  of  those  in  the  body  of  the  instrument  having  been  referred 
to,  there  are  numerous  facts,  contemporaneous  and  subsequent, 
that  raise  strong  presumptions  against  the  destruction  of  the  right 
of  sovereignty  in  the  States  by  the  ratification  of  the  Constitution. 

Each  State  acting  in  its  separate  and  sovereign  capacity  in  del- 
egating powers  to  create  the  federal  government,  ,as  it  had  done  to 
create  its  State  government,  «there  was  no  necessity  for  surrender- 
ing any  part  of  its  sovereign  power;  and  therefore,  so  radical  a  rev- 
olution of  its  rights  should  not  be  presumed,  eacept  upon  the 
plainest  evidence  of  it.  Upon  the  supposition  that  so  extraordi- 
nary a  change  was  made,  is  it  not  strange,  that  the  wise  and  good 
men,  \^ho  framed  the  Constitution,  did  not  insert  some  clause  that 
wo  aid  have  plainly  developed  the  fact.  Again,  suppose  the  people 
had  understood,  that  they  were  forming  a  new  political  aggregated 
association  of  all  the  people  in  the  territory  of  the  Union,  so  as  to 


OUR    FEDERAL    RELATIONS.  65 

constitute  one  people, — one  State,  would  they  have  formed  a  gov- 
emraent,  organized  as  that  provided    in    the    Constitution?  They 
were  thorough  republicans,  and  believed  in  equal  political  rights, 
and  equal  representation,  and  the  right  of  majorities  to  control  in 
public  affairs;  and  therefore,  in  forming  a  government  by  and  for 
the  one  people,  it  would  be  expected  that  these   principles   would 
be  found  pervading  it.     Strange  to  say,    that  there   is  not  one  of 
them,  that  is  assured  and  made  certain,  in  the  organization  and  op- 
erations of  the  government  that  was  formed   in   reference   to  the 
populution  in  the  aggregate  of  the  supposed  one  people.  It  is  pos- 
sible that  minorities,  and  sometimes  very  small   ones,  may  elect  a 
a  President,  make  a  treaty,  appoint  judges   and  military   officers, 
prevent  a  change  of  the  Constitution,  prevent  the  passage  of  laws, 
prevent  the  admissioa  of  new   States,  require   Congress   to  call  a 
convention  to  change  the   Constitution,  or  even  change  the  Con- 
stitution, and  supposing  the  population  of  each   State  stood,  when 
the  Constitution  was  ratified,  as  it  did  shortly  after  ia   1790,  when 
the  census  was  taken,  nine  States,  with  a  population  of  1,390,000 
could  dissolve  the  old  confederation,  establish  the  new   Constitu- 
tion, and  throw  out  of  the  Union  four  States,  containing  1,700,000, 
to-wit:   Massachusetts,   New  York,   Pennsylvania  and  Virginia,  if 
each  and  all  of  the  four  failed  to  ratify  the  Constitution,  they  hav- 
ing a  majority   of  over  300,000  people.     Those  who  framed  the 
Constitution  and  those  who  ratified  it,  must  have   been  cognizant 
of  the  possibility  of  such  results,  from  the  well-known  disparity  of 
the  population  and  extent  of  territory  in  the  several   States,  which 
must  necessarily  continue  to   exist.     An  examination   of  the  cen- 
sus, at  different  times,  and   the  apportionment  of  representatives, 
will  verify  the  possibility  of  the  results  as  stated.     Its  shape  is  fed- 
eral in  every  respect  and  not  national.     In   the    convention  that 
framed  the  Constitution,  all  agreed  in  preserving  the  endangered 
Union  by  making  more  efficient  government,  especially  on  the  sub- 
ject of  regulating  commerce,  levying  and  collecHng  taxes  to  defray 
its  own  expenses,  and  the   creation   of  a  judiciary  to   enforce   its 
laws  directly  on  and  for  the  people,  as  State  governments  did.     A 
portion  of  the  delegates  sought  to  make  it  the  representative  of  a 
consolidated  State,  a  nation,  but  the  majority,  desiring  to  preserve 
its  federal  character,  after  a   great  struggle,   rejected  every  word 
that  savored  of  nationality. 

Those  who  advocated  the  ratification  in  the  State  conventions, 
and  in  the  press,  were  called  federalists,  not  nationalists.  Viewed 
asja  federal  union  between  sovereign  States,  its  structure  and  powers 
are  appropriate,  with  a  reasonable  addition  of  influence  given  to 
the  larger  States  in  the  popular  branch  of  Congress,  that  has  the 
exclusive  right  to  introduce  bills  for  raising  revenue.  It  elects  the 
President,  and  members  of  Congress,  and  amends  the  Constitution 
by  States.     Viewed  as  the  representative  of  one  people  in  the  ag- 


66  OUR    FEDERAL    RELATIONS. 

gregate,  a  nation,  it  is  an  outrage  upon  the  principles  of  equal 
political  rights  in  all  of  its  organism,  and  possible  action,  as  pre- 
scribed in  the  Constitution.  There  is  another  strong  presumption 
founded  on  the  facts  of  the  history  of  that  period.  Those  people 
from  1765  to  1776  were  engaged  in  a  painful  and  agitating  contest 
with  the  mother  country,  a  sovereignty  foreign  to  themselves  in  local- 
ity, in  regard  to  the  right  of  parliament  to  tax  them  for  general  rev- 
enue; then,  after  renouncing  their  allegiance,  enduring  an  exhaust- 
ing war  for  seven  years  to  maintain  their  assumed  State  sover- 
eignty, and  then,  in  peace  for  five  years  more,  cementing  its  bonds, 
and  priding  in  its  possession,  would  they  then  abandon  the  absolute 
sovereignty  of  Sfates,  so  acquired,  enjoyed  and  cherished,  and  put 
the  power  of  controlling  them  irrevocably  in  the  hands  of  any  peo- 
ple or  government,  beyond  the  limits  of  their  respective  territo- 
ries? 

Had  the  people  of  each  State  so  soon  forgotten  that  it  was  their 
opposition  to  the  assumption  of  the  unlimited  power  of  taxing 
them  by  parliament  that  had  brought  on  the  war,  which  resulted 
in  their  having  to  assert  and  maintain  their  State  sovereignty,  as 
against  the  sovereign  power  that  was  previously  over  them?  It 
was  not  the  want  of  representation  that  controlled  them.  It  would 
have  done  them  no  good  from  its  smallness.  They  did  not  want 
it,  and  if  it  had  been  tendered  them,  their  opposition  would  have 
existed  with  equal  force.  Would  the  people  of  a  State  knowingly 
place  themselves  in  the  same  position,  substantially  and  practi- 
cally, by  irrevocably  surrendering  to  another  government  the  unlim- 
ited power  of  taxation  with  no  recourse  from  ruinuous  oppression, 
but  the  votes  of  its  representatives  in  Congess,  and  a  resort  to  arms 
in  lebellion  against  the  sovereign  power  they  had  helped  to  create 
over  them? 

How  do  these  presumptions  stand,  founded  on  facts,  as  against 
the  baseless  fabric  of  a  deductive  theory,  that  a  nation  was  manu- 
factured out  of  the  mutilated  fragments  of  the  sovereignty  of  thir- 
teen free  and  independent  States,  whose  glorious  achievement  of 
independence  have  received  the  plaudits  of  the  lovers  of  liberty 
throughout  the  earth,  and  will  continue  to  do  it  in  the  great  future, 
as  long  as  patriotism  is  regarded  a  virtue? 

We  may  also  refer  to  contemporaneous  and  subsequent  construc- 
tion and  understanding  with  advantage. 

New  York  and  Rhode  Island  expressly  reserved  the  right  to  re- 
sume the  powers  delegated  to  the  general  government  in  the  reso- 
lutions of  their  conventions,  ratifying  the  Constitution.  Many  of 
the  new  States  recognized  and  asserted  the  right  of  State  sover- 
eignty in  forming  their  Constitutions.  That  of  Ohio  in  1802  con- 
tains the  following;  "We,  the  people  (in  a  certain  territory  de- 
scribed, etc.),  do  ordain  and  establish  the  following  Constitution, 
or  form  of  government,  and  do  mutually  agree  with  each  other  to 


OUR    FEDERAL    RELATIONS.  67 

fprm  ourselves  into  a  free  and  independent  State,  by  the  name  o^ 
the  State  of  Ohio."  This  needs  no  comment.  The  same  words 
were  used  in  tlie  Constitutions  of  Tennessee  1796,  Louisiana,  1812, 
Indiana,  i8t6,  Mississippi,  1817.  Illinois,  1818,  Alabama,  1819 
Missouri,  1826,  Maine,  1820,  Michigan,  1835,  Florida,  1838,  Kansas, 
1855,  Iowa,  1857. 

A  more  potent  evidence  of  the  recognition  of  State  sovereignty 
is  to  be  found  in  the  great  influence  it  has  had  repeatedly  in  shap- 
ing the  action  of  the  administration  of  the  general  government. 
It  was  presented  as  a  dernier  resort  for  relief  against  unconstitu- 
tional action  in  the  resolutions  of  Virginia  and  Kentucky  of  1798 
and  1799,  which  changed  the  administration  from  the  party,  called 
the  Federalist  party,  into  the  hands  of  that  called  the  Republican, 
with  Mr.  Jefferson  as  President.  And  those  resolutions  were  ap- 
proved in  the  platform  of  the  party  generally  dominant  up  to  the 
late  civil  war. 

Before  that  Georgia  had  refused  to  recognize  the  right  of  the 
Supreme  Court  of  the  United  States  to  bind  it  by  a  judgment  in 
a  suit,  instituted  against  it,  by  a  citizen  of  another  State.  That 
caused  Congress  to  take  the  proper  steps  for  a  change  of  the  Con- 
stitution on  that  subject,  which  resulted  in  the  adoption  of  the 
nth  Amendment. 

The  refusal  of  the  States  of  Massachusetts  and  Connecticut  to 
furnish  their  quota  of  troops  in  the  war  of  1812,  and  other  meas- 
ures looking  to  a  probable  resort  to  secession,  if  the  war  continued, 
greatly  weakened  the  efficiency  of  President  Madison's  administra- 
tion, and  probably  hastened  the  eff"orts  to  make  peace  with  Eng- 
land. 

In  the  struggle  in  Congress  over  the  restriction  of  the  spread  of 
slavery,  upon  the  application  of  Missouri  for  admission  into  the 
Union,  the  danger  of  bringing  into  requisition  State  sovereignty  as 
a  mode  of  relief  against  the  power  of  the  majority,  induced  the 
Missouri  compromise  of  1820.  South  Carolina,  by  preparing  to 
assert  its  right  of  sovereignty,  in  resisting  the  tariff  measures  in 
1832-3,  induced  a  compromise  by  which  Congress  provided  for  a 
reduction  to  a  revenue  standard  in  nine  years. 

It  was  the  leading  influence  in  the  slavery  agitation  that  pro- 
daced  the  compromise  acts  of  1850. 

In  all  of  these  instances  it  acted  as  a  check  in  preventing,  or  at 
least  modifying  the  excessive  assumption  of  power  by  majorities, 
and  was  effective  in  doing  it  in  a  considerable  degre,  when  prob- 
ably nothing  else  would  have  done  it.  It  has  been  previously  stated 
that  the  right  of  sovereignty  in  a  State  or  people  may  be  destroyed 
by  force.  It  may  be  gradually  impaired  until  it  will  be  substan- 
tially lost,  by  the  aggressive  assumption  of  another  power,  in  con- 
nection with  the  State,  having  been  submitted  to.  Thus  the  legis- 
lative and  judicial  action  of  the  general  government,  and  the  sup- 


68  OUR"   FEDERAL    RELATIONS. 

porters  of  its  increase  of  power,  through  a  long  series  of  yearsv 
had  exerted  such  an  influence  upon  the  minds  of  a  majority  of  the 
people  in  the  United  States,  as  to  cause  the  right  of  the  sovereign- 
ty of  the  States- to  be  authoritatively  denied,  and  disregarded  prac- 
tically for  the  first  time  in  i860,  and  during  the  civil  war. 

The  Southern  States,  in  i860  and  1861,  asserted,  and  put  in  exe- 
cution their  right  of  sovereignty  by  seceding  from  the  Union. 
That  caused  many  good  men  to  make  efforts  for  a  time  to  make 
such  a  compromise  as  would  secure  the  right  of  the  minority, 
which  were  deemed  to  have  been  jeopardized.  And  though  many 
statesmen  in  the  North  recognized  the  right,  it  was  overwhelmed 
and  sunk  out  of  view  by  the  long  continued  agitation  of  the  slav- 
ery issue,  by  the  idea  of  "preserving  the  life  of  the  nation,"  by  the* 
announcement  in  terrorem  of  the  "irrepressible  conflict  between 
free  and  sliave  labor,  and  that  all  of  the  States  must  be  either  free 
or  slave  States,"  and  by  numerous  other  antagonisms.  The  war 
and  the  surrender  of  the  South,  at  the  end  of  four  years,  were  the 
consequences. 


OUR    FEDERAL    RELATIONS.  69 


A  LECTURE. 


UPON  THE  CLOSE  OF  THE  WAR  AND  THE  RECONSTRUCTION  OF  THE 
SOUTHERN  STATES  BY  PRESIDENT  ANDREvV  JOHNSON,  AND  PARTIC- 
ULARLY ITS  CONSUMMATION  IN    TEXAS. 


The  surrender  of  General  Lee,  being  soon  followed  by  that  of 
General  Joe  Johnston,  and  also  by  that  of  General  Dick  Taylor, 
east  of  the  Alississippi  river,  destroyed  the  hopes  of  separate  inde- 
pendence. There  were  conflicting  opinions  as  to  whether  the 
trans-Mississippi  department  should  continue  the  struggle  or  not. 
It  was  believed  by  some  that  if  we  would  hold  out,  many  of 
the  officers  and  soldiers  east  of  the  river  would  come  to  our  aid, 
and  that  our  example  would  give  encouragement  to  renew  the 
struggle  east  of  the  river.  Others;  however,  regarded  our  defeat 
as  a  mere  matter  of  time.  General  Grant  had  shown  it  to  be  cer- 
tainly practicable  for  two  or  three  Northern  soldiers  to  subdue  one 
Southern  soldier,  a  problem  that  no  other  federal  officer  had  solved 
during  the  war.  He  had  gop?  about  it  systematically,  and  had 
three  times  accomplished  it,  the  first  at  Fort  Donaldson,  the  second 
at  Vicksburg,  and  the  third  at  Richmond.  He  had  invariably 
planned  and  fought  for  certain  victory,  by  the  simple  process  of 
taking  such  time,  and  using  such  me«ins  as  were  necessary.  Nor 
is  it  to  be  regarded  as  any  little  merit  in  generalship,  that  he  re- 
peatedly did  it,  considering  the  haste  of  the  Northern  mind  to 
■'crush  out  the  rebellion."  Surely  he  would  not  fail  in  his  fourth 
attempt,  which  would  have  been  to  subdue  the  trans-Mississippi 
department.     He  had  learned  his  lesson  too  well  for  that. 

Texas  had  not  been  scathed  by  the  ravages  of  war.  Her  towns, 
villages,  houses  and  farms  had  not  been  laid  desolate  by  fire.  The 
federals  had  never  held,  otherwise  than  temporarily,  possession  of 
any  part  of  her  territory,  which  had  been  confined  to  the  coast  of 
the  gulf  at  Galveston  and  at  Brownsville.  Many  of  her  sons  had 
fallen,  with  sickness  and  in  battle,  at  a  distance  from  their  homes. 
Her  people,  men,  women  and  children,  had  labored  and  suffered 
hardships  and  privations  in  body,  and  agony  of  mind,  for  four  long 
years.  Their  cause  was  lost;  and  when  Gen.  E.  Kirby  Smith  sur- 
rendered on  May  27,  1865,  the  mass  of  people,  officers,  soldiers  and 
citizens,  were  generally  prepared  for  it.     Then  ensued  a  scene  not 


70  OUR    FEDERAL    RELATIONS. 

inaptly  denominated,  "the  break  up."  The  higher  officers  left 
their  commands,  and  the  soldiers  and  officers  of  the  line  divided 
out  the  teams,  the  quartermaster  and  commissary  stores,  and  with 
guns  in  their  hands,  departed  for  their  respective  homes.  The 
military  posts  in  almost  every  town  and  village  of  the  State  were 
sacked  without  restraint.  The  roads  all  over  the  country  were 
filled  with  men,  by  ttvos,  by  fives,  by  tens,  by  twenties,  by  fifties, 
and  by  hundreds;  some  walking,  others  riding,  but  all  without  any 
compulsory  organization.  Every  house  on  the  way  was  open  to 
them  to  supply  their  necessities  and  make  them  welcome,  usually 
without  charge.  For  two  or  three  weeks,  this  dreadful  stream  of 
commotion  and  excitement  passed  in  review,  throughout  the  wide- 
spread land.  Strange  as  it  may  be,  not  a  murder,  robbery,  out- 
rage, or  personal  indignity  of  any  serious  character  was  heard  of 
anywhere.  The  only  strife  was  amongst  the  soldiers  about  the  di- 
vision of  the  spoils,  consisting  of  the  public  property;  and  that 
was  generally  settled  amicably;  or  very  quietly  by  the  force  of 
numbers  without  a  conflict.  It  is  impossible  to  portray  on  paper 
the  excitement,  the  despair,  and  the  dread,  all  mingled  in  the  feel- 
ings of  one  who  surveyed  this  scene.  After  the  storm  followed 
the  calm.  For  three  months  we  had  no  officers  of  State,  county  or 
town,  and  but  few  federal  troops,  who  were  for  the  most  part  trav- 
eling in  squads  gathering  up  the  public  property  that  could  be 
found.  There  was  but  li;tle  attention  paid  to  labor  or  to  business 
of  any  kind,  and  there  was  a  stagnation  in  traffic  of  all  sorts.  The 
whole  country  reposed  in  despondency  as  to  the  past,  and  in  silent 
dread  as  to  the  future.  The  general  gloom  chained  down  the  pas- 
sions and  vices  of  men,  and  rendered  them  harmless  to  each  other 
in  the  entire  absence  of  legal  restraint.  A  fellow-feeling  of  mis- 
fortune drew  out  the  kinder  sympathies  of  our  nature,  which  were 
aided  and  fostered  by  the  traditional  and  habitual  respect  for  law 
and  order.  But  the  trials  of  the  people  on  this  subject  was  not 
yet  over.  For  on  the  19th  day  of  June,  1865,  Gen.  G.  Granger,  of 
the  federal  army,  by  proclamation  at  Galveston,  took  military  pos- 
session and  command  of  Texas,  and  issued  orders  declaring  "all 
acts  of  the  governor  and  legislature  of  Texas  since  the  ordinance 
of  secession,  illegitimate,"  and  calling  upon  all  Confederate  and 
State  officers  and  soldiers  to  repair  to  certain  places  in  the  State 
to  be  paroled.  He  also  declared  the  negroes  to  be  set  free. 
Again  the  roads  were  filled  with  traveling  soldiers;  and  again  they 
and  the  citizens  exhibited  the  same  orderly  conduct,  and  the  ne- 
groes generally,  for  that  year,  remained  at  their  homes  with  their 
former  masters. 

It  was  not  until  about  the  25th  of  July  that  Gov.  A.  J.  Hamilton 
arrived  in  Texas  to  organize  a  civil  government  within  the  State, 
and  it  was  at  least  a  month  more  before  the  various  civil  officers 
were  appointed  and  commenced  the  exercise  of  their  duties.    Dur- 


OUR    FEDERAL    RELATIONS.  71 

ing  all  this  period  the  officers  of  the  State  did  not  assume  to  dis- 
charge their  duties  as  officers,  because  they  had  no  assurance  that 
their  acts  would  be  recognized  as  legal  by  the  military  authorities, 
or  respected  by  the  people.  Indeed,  it  was  generally  understood, 
that  their  authority  as  officers  was  wholly  repudiated  by  the  gov- 
ernment of  the  United  States.  On  the  25th  day  of  July,  1863,  Gov. 
A.  J.  Hamilton,  at  Galveston,  issued  his  proclamation  announcing 
to  the  people  of  Texas,  that  he  had  been  appointed  by  President 
Johnson  provisional  Governor  for  the  State  of  Texas,  for  the  pur- 
pose of  organizing  a  civil  government  therein.  The  question  here 
arises:  By  what  authority  did  President  Johnson  undertake  to  or- 
ganize a  State  government  for  Texas.  His  proclamation  of  the  17th 
of  June,  1865,  appointing  A.  J.  Hamilton  "Provisional  Governor  of 
the  State  of  Texas"  gives  us  the  answer  by  assuming  that  the  peo- 
ple of  Texas  had  been  deprived  of  all  civil  government  by  the  "re- 
bellion," which  had  been  waged  by  a  portion  of  the  people  of  the 
United  States  against  the  properly  constituted  authorities  thereof, 
and  that  it  was  the  duty  of  the  United  States  to  secure  to  the  peo- 
ple of  Texas  the  enjoyment  of  a  republican  form  of  government, 
and  protect  them  against  invasion  and  domestic  violence;  and  that 
it  was  his  duty,  as  the  chief  executive  officer,  and  as  commander- 
in-chief  of  the  army,  to  cause  the  laws  to  be  executed. 

Under  this  view  of  the  disorganized  condition  of  the  people  of 
Texas,  and  of  the  obligation  of  the  government  of  the  United  States 
to  them,  and  of  his  duty  and  consequent  power  to  direct  and  carry 
out  the  performance  of  that  obligation,  he,  in  said  proclamation, 
directed  the  various  officers  of  the  federal  government  and  heads  of 
departments  to  carry  into  effect  the  laws  of  the  United  States  with- 
in the  State  of  Texas.  This  was  done  to  impose  on  the  people  of 
Texas  their  federal  obligations  which  had  been  temporarily  dis- 
turbed, and  to  give  to  them  the  benefit  of  the  direct  action  of  the 
laws  of  the  United  States  for  their  protection  as  citizens  of  the 
United  States.  And,  as  a  full  resumption  of  their  federal  relations 
could  not  be  accomplished  in  the  entire  absence  of  an  organized 
State  government  (none  then  existing  in  Texas),  the  President  un- 
dertook to  provide  means,  and  direct  the  mode  of  enabling  the 
loyal  people  of  Texas  to  frame  a  constitution,  and  organize  a  State 
government,  whereby  justice  might  be  established,  domestic  tran- 
quility restored,  and  loyal  citizens  be  protected  in  all  their  rights 
of  life,  liberty  and  property.  Who  were  the  loyal  citizens  that  he 
thus  sought  to  enable  to  make  and  organize  a  State  government  in 
Texas  for  their  protection,  as  the  finishing  act  in  the  renewal  and 
complete  resumption  of  their  federal  relations?  This  question  must 
be  answered  by  reference  to  a  former  proclamation  issued  by  the 
President  on  the  29th  day  of  May,  1865,  which  offered  amnesty  and 
pardon  to  all  persons  that  had  been  engaged  in  the  rebellion,  with 
certain  specified  exceptions,  who  would  in  good  faith  take  and  ob- 


72  OUR    FEDERAL    RELATIONS. 

serve  an  oath  to  henceforth  faithfully  support,  protect  and  defend 
the  Constitution  of  the  United  States  and  the  union  of  the  States 
thereunder,  and  to  abide  by  and  faithfully  support  all  laws  and 
proclamations,  which  have  been  made  during  the  existence  of  the 
present  rebellion,  with  reference  to  the  emancipation  of  slaves. 
This  oath  was  designed  to  be,  when  taken,  as  it  afterwards  was  by 
the  mass  of  the  people,  a  solemn  surrender  of  the  issues  of  the  war, 
secession  and  slavery,  and  which  when  taken  and  observed  in  good 
faith,  was  designed  by  the  President  to  be  a  restoration  of  the  citi- 
zen to  a  state  of  loyalty  to  the  government,  and  to  such  persons  did 
he  design  to  entrust  the  power  to  reorganize  State  government  in 
Texas.  It  was  obvious  that  if  the  persons  who  took  this  oath  un- 
dertook to  revise  and  reform  the  Constitution  of  the  State,  the 
future  right  of  secession  and  right  to  hold  slaves  must  be  abandon- 
ed in  it,  and  thereby  the  professed  object  of  the  prosecution  of  the 
war,  on  the  part  of  the  North,  would  be  attained  so  far  as  Texas 
was  concerned.  During  the  whole  time  of  the  war,  the  President 
and  Congress  most  carefully  avoided  recognizing  the  existence  of 
the  Confederate  government  in  any  shape  whatever,  and  persisted 
in  treating  those  engaged  in  hostility  as  disaffected  individuals  act- 
ing under  a  "so-called"  Confederate  government, and  who,  by  their 
unlawful  acts,  were  interrupting  the  execution  of  the  laws  of  the 
United  States  in  the  Southern  States  of  the  Union;  and  not  as  se- 
ceded or  even  as  revolted  States,  that  had  separated  themselves 
from  the  federal  Union. 

The  government,  in  the  most  solemn  form,  had  pioclaimed  to 
the  world,  that  the  object  of  the  war  was  simply  the  preservation  of 
the  Union.  President  Johnson  had  gone  a  step  farther,  in  accor- 
dance with  the  precedent  set  him  by  President  Lincoln,  and  sought 
to  put  an  end  to  slavery,  which  had  been  the  immediate  cause  of 
the  war;  and  by  that  means  a  recurrence  of  a  similar  difficulty 
would  be  avoided  on  that  ground.  That  view  of  the  subject,  as 
the  proper  terms  of  pacification,  is  sanctioned  by  the  practice  and 
usage  of  nations  who  have  to  go  to  war  to  settle  impending  diffi- 
culties. 

By  what  means,  and  in  what  mode,  did  President  Johnson  en- 
able the  people  thus  made  loyal,  as  well  as  those  who  had  remained 
loyal,  to  organize  a  State  government  in  Texas?  First,  by  appoint- 
ing A.  J.  Hamilton  provisional  governor  of  the  State  of  Texas; 
second,  by  making  it  his  dnty,  in  the  proclamation  appointing  him, 
at  the  earliest  practicable  time  to  prescribe  such  rules  and  regula- 
tions as  may  be  necessary  and  proper  for  convening  a  convention 
to  be  chosen  by  the  loyal  people,  for  the  purpose  of  altering  and 
amending  the  Constitution,  and  to  exercise  such  powers  as  may  be 
necessary  to  enable  them  to  restore  the  State  to  its  federal  rela- 
tions; thirdly,  by  prescribing  that  those  should  vote  in  the  elec- 
tion of  delegates  to  the  convention  who  were  qualified   voters  by 


OUR    FEDERAL    RELATIONS.  73 

the  Constitution  and  laws  of  the  State  of  Texas  immediately  be- 
fore the  date  of  the  "so-called"  secession,  and  who  had  taken  the 
amnesty  oath;  and  that  delegates  should  have  the  same  qualifica- 
tions, and  fourthly,  by  recognizing  the  right  of  the  people  of  Texas 
as  a  State  acting  in  convention,  or  through  its  State  legislature  af- 
terwards to  be  assembled,  to  determine  for  itself  the  qualifications 
of  its  voters  and  officers.  The  President  not  only  acted  under  his 
constitutional  power  to  grant  pardons,  but  also  under  an  act  of 
Congress  of  1862,  the  13th  section  of  which  read  as  follows,  to  wit: 
"The  President  of  the  United  States  is  hereby  authorized,  at  any 
time  hereafter,  by  proclamation,  to  extend  to  persons  who  may 
have  participated  in  the  existing  rebellion  in  any  State  or  part 
thereof,  pardon  and  amnesty,  with  such  exceptions,  at  such  lime, 
and  on  such  conditions,  as  he  may  deem  expedient  for  the  public 
welfare." 

The  object  in  dwelling  upon  these  proclamations  is  to  deduce 
from  them  the  view  of  the  President  of  the  political  status  of  Texas, 
and  his  plan  of  reconstruction. 

First.  He  regarded  Texas  as  a  State  of  the  Union,  with  all  the 
rights  of  a  State  under  the  Constitution  of  the  United  States,  un- 
impaired by  the  war,  and  with  a  constitution  and  laws  of  her  own; 
not  having  the  right  to  secede,  and  not  therefore  having  in  fact 
seceded  from  the  Union. 

Second.  He  considered  that  Texas  had  no  civil  officers  to  exe- 
cute her  laws  existing  under  her  Constitution  of  1845,  as  the  result 
of  the  participation  of  the  mass  of  her  people  in  erecting  an  un- 
constitutional government  (in  1861)  in  opposition  and  hostility  to 
the  general  government  of  the  United  States,  and  that  both  her 
federal  relations  and  internal   administrations  were  suspended. 

Third.  That  Texas  could  not  resume  her  federal  rela- 
tions without  her  corporate  powers,  embodied  in  her  subsisting 
constitution  and  laws  being  put  into  activity  by  the  election  of  of- 
ficers and  the  reorganization  of  civil  government. 

Fourth.  He  considered  that  if  the  people  of  Texas  were  allowed 
to  retain  the  de  facto  government  which  they  had  at  the  close  of 
the  war,  or  to  organize  another  of  their  own  accord,  and  according 
to  their  own  views,  that  they  might  do  so  without  repudiating  seces- 
sion and  slavery,  and  in  that  event  the  issues  of  the  war  would  not 
be  surrendered  by  the  people  of  Texas;  and  that  therefore  they 
would  be  as  free,  so  far  as  it  relates  to  their  constitutional  obliga- 
tions, to  renew  the  strife,  as  they  were  to  commence  it  before  the 
war. 

Fifth.  He  considered  that  if  any  other  power  than  the  people  of 
Texas  themselves,  should  institute  a  government  for  them,  with  the 
rights  of  secession  and  slavery  abandoned,  and  prescribe  who 
should  vote  and  hold  office  in  Texas,  it  would  to  that  extent,  abro- 
gate her  Constitution  of  1845,  ^^^  place  Texas  in  a  position  of  in- 


74  OUR    FEDERAL    RELATIONS. 

feriority  as  a  State,  so  that  she  could  not  resume  her  federal  rela- 
tions and  exist  within  the  Union  upon  terms  of  equality  with  other 
States.  Without  that  state  of  equality  the  union  of  the  States 
could  not  be  restored  and  exist,  as  it  was  contemplated  to  be  by 
the  Constitution  of  the  United  States. 

Sixth.  He  considered  that  the  great  mass  of  the  citizens  had 
been  guilty  of  treason  against  the  government  of  the  United  States, 
but  that  it  was  not  practicable,  if  desirable,  to  attempt  a  prosecu- 
tion of  the  great  mass  of  them;  because,  if  for  no  other  reason, 
the  Constitution  required  them  to  be  prosecuted  within  the  federal 
judicial  district  in  which  the  alleged  offense  was  committed. 

Under  these  views,  the  President  adopted  the  plan  of  holding 
the  people  of  Texas,  (as  well  as  those  of  other  Southern  States)  in 
military  subjection  by  the  army,  and  of  offering  amnesty  and  par- 
don (with  certain  exceptions),  upon  their  taking  an  oath  which 
should  bind  their  consciences  to  a  surrender  of  secession  and  sla- 
very, as  future  rights  not  to  be  claimed  by  them;  and  when  they 
should  become  so  bound,  they  might  be  trusted  to  revise  and  alter 
the  State  constitution,  and  reorganize  the  State  government  in  con- 
formity to  their  oath-bound  obligation,  which,  when  thus  volun- 
tarily done,  would  enable  the  State  to  resume  its  federal  relations 
under  a  government  of  their  own  creation,  as  contemplated  by  the 
Constitution  of  the  United  States;  and  at  the  same  time,  the  ob- 
ject of  the  war  would  be  fully  accomplished  in  the  surrender  of 
the  right  of  secession  and  slavery  by  the  State  itself;  which  would 
then  stand  in  harmony  and  on  terms  of  political  equality  with  the 
other  States  of  the  Union. 

President  Johnson  designed,  by  his  plan  of  reconstruction,  to 
accomplish  two  leading  objects,  to-wit:  To  eradicate  the  causes 
of  disagreement  in  political  sentiment,  that  had  existed  between 
the  South  and  North;  and  at  the  same  time  to  reinstate  and  pre- 
serve the  Union  as  a  Union  of  States,  in  accordance  with  the  the- 
ory of  the  Union  Democracy,  thereby  checking  what  he  consid- 
ered the  revolutionary  tendency  towards  consolidation. 

To  carry  out  this  plan,  A.  J.  Hamilton  was  appointed  provi- 
sional governor  of  Texas,  an  office  invented  and  named  for  the 
purpose.  On  the  25th  day  of  July,  1865,  in  Galveston,  Governor 
Hamilton  issjed  his  proclamation  "To  the  people  of  Texas," 
indicating  the  steps  to  be  taken,  to  wit  :  the  appointment  of  per- 
sons in  the  respective  counties  to  administer  the  amnesty  oath, 
and  to  register  the  voters,  preparatory  to  an  election  for  delegates 
to  a  convention;  the  appointment  of  State,  district  and  county 
officers,  "  there  being  no  civil  officers  in  the  State;"  the  holding  of 
a  convention,  with  powers  to  organize  a  "full  and  complete  State 
government,"  whose  action  should  be  submitted  to  the  qualified 
voters  of  the  State.  It  was  also  therein  announced  that  the  gen- 
eral laws  and  statutes  of  the  State  in  force  immediately  before  the 


OUR    FEDERAL    RELATIONS.  75 

first  day  of  February,  1861  (the  date  of  the  so-called  ordinance 
of  secession),  are  to  be  respected  and  enforced.  And  all  laws,  or 
pretended  laws,  acts  or  resolutions  of  any  legislature,  convention, 
or  pretended  laws,  acts  or  resolutions  of  any  legislature,  conven- 
tion, or  other  authority,  based  upon  a  supposed  dissolution  of  the 
Union,  or  inconsistent  with  the  idea  of  Texas  being  an  integral 
part  of  the  United  States  government  are  inoperative  and  void, 
and  no  longer  to  be  respected  or  obeyed  by  the  public,  officers,  or 
citizens  of  the  State;  and  the  courts  when  established,  will  proceed 
according  to  the  laws,  usages  and  forms  existing  immediately  prior 
to  the  said  first  day  of  February,  1S61,  except  in  so  far  as  they 
may  be  affected  by  the  emancipation  of  slaves  in  the  State  by  au- 
thority of  the  United  States,  or  by  other  acts  for  the  suppression  of 
the  late  rebellion." 

Pursuant  to  a  request  of  Gov.  Hamilton  at  Galveston,  a  large 
number  of  citizens  of  Texas,  generally  Union  men,  met  him  at 
Austin,  and  gave  him  their  assistance  in  selecting,  and  many  of 
them  in  accepting,  the  civil  offices  in  the  State.  In  many  of  the 
Southern  States,  particularly  in  Mississippi  and  Alabama,  rhe  offi- 
cers that  had  been  elected  by  the  people  during  the  time  of  the 
confederacy,  except  those  in  the  executive  departments,  had  been 
generally  retained  upon  their  taking  the  amnesty  oath  and  the  or- 
dinary oath  of  office.  In  Texas,  however,  very  few  were  retained, 
unless  they  were  known  to  have  been  Union  men  during  the  war; 
who  seemed  to  have  had  a  private  knowledge  of  eaeh  other  exten- 
sively over  the  State.  There  were  some  counties  and  districts, 
however,  where  competent  officers  of  Union  proclivities  could  not 
be  found,  or  would  not  accept  office;  and  in  such  cases,  selections 
were  made  from  the  ranks  of  the  secessionists.  A  notable  instance 
of  this  was  in  the  appointment  of  Richard  Coke,  of  Waco,  as  dis- 
trict judge,  who  accepted  the  office  at  the  solicitation  of  both  Union 
men  and  secessionists.  There  was  no  appointment  of  justices  of 
the  Supreme  Court,  and  therefore  their  offices  remained  vacant. 

During  the  summer  and  early  part  of  the  fall  of  1865,  the  offices 
were  generally  filled,  and  the  courts  were  opened  and  held  at  the 
times  and  places  that  they  had  been  held  at  during  the  time  of  the 
Confederacy,  which  was  done  under  the  proclamation  of  the  gov- 
ernor. 

In  the  administration  of  law  in  the  courts  of  that  period,  the  acts 
of  the  State  Legislature  relating  to  matters  merely  local  within  the 
State,  and  not  in  violation  of  the  Constitution  of  the  United  States 
or  directly  or  indirectly  promotive  of  the  objects  of  the  civil  war, 
were  carried  out. 

The  governor  levied  and  collected  a  tax  to  defray  the  expenses  of 
government  as  well  as  the  convention  to  be  held. 

By  a  proclamation  of  the  15th  of  November,  1865,  issued  by  the 
governor,  an  election  for  delegates  to  a  convention  was  held  on  the 


76  OUR    FEDERAL    RELATIONS. 

Sth  day  of  January,  iS66,  just  five  years  after  the  election  for  dele- 
gates to  the  secession  convention,  that  having  been  held  on  the  Sth 
day  of  January,  1861.  They  met  in  Austin  on  the  7th  day  of  Feb- 
ruary, 1866,  and  proceeded  to  the  business  before  them.  James 
W.  Throckmorton,  of  Collin  county,  was  elected  president  of  the 
convention.  Before  the  war  he  had  been  a  secessionist  in  princi- 
ple, though  openly  and  strongly  opposed  to  it  as  impolitic.  He 
was  one  of  seven  members  of  the  convention  in  1861,  who  voted 
against  secession.  But  when  the  die  was  cast,  he  expoused  the 
cause  of  his  State,  even  during  the  session  of  the  convention.  He 
exerted  himself  in  the  northwestern  part  of  the  State,  which  was 
generally  opposed  to  the  movement,  to  harmonize  public  sentiment 
into  a  cordial  acquiscence,  and  had  much  influence  in  its  accom- 
plishment. He  went  into  the  army;  was  a  major  in  a  regiment, 
did  good  service,  and  at  the  close  of  the  war,  he  was  in  the  service 
of  the  State  upon  the  frontier,  with  the  rank  of  brigadier  general. 
Having  been  a  prominent  member  of  the  legislature  for  several 
years  before  the  war,  having  been  a  strong  Union  man,  and  then 
having  rendered  good  service  to  the  Southern  cause  during  the 
war,  there  seemed  to  be  a  general  impression  of  his  fitness  to  be  a 
prominent  leader  in  the  work  of  reconstructing  the  State  under  the 
plan  of  President  Johnson.  His  election,  therefore,  was  received 
with  general  approbation. 

The  work  before  this  convention  was  of  a  most  delicate  and 
arduous  character,  for  three  reasons:  First,  the  subject  of  read- 
justment instrinsically  involved  numerous  difficult  and  perplexing 
questions.  Secondly,  but  little  light  was  furnished  as  to  what 
would  be  required  of  the  convention  further  than  a  renunciation  of 
slavery  and  the  right  of  secession.  Thirdly,  the  signs  of  a  disa- 
greement between  the  President  and  the  Congress  as  a  body  had 
already  begun  to  appear;  and  the  governor  was  regarded  as  in  the 
interest  of  the  Congress,  though  an  appointee  of  the  President  to 
carry  out  his  plan  of  reconstruction;  and  hence,  whatever  might  be 
done  was,  at  best,  a  mere  experiment. 

The  work  that  was  done  by  the  convention  may  be  briefly  con- 
sidered under  two  heads:  First,  a  series  of  ordinances  passed 
finally  by  that  body,  without  submitting  them  to  the  people,  the 
object  of  which  was  to  readjust  the  State  internally  and  externally 
to  the  new  state  of  things  then  presented.  Second,  a  revision  and 
amendment  of  the  Constitution  of  1845,  which  was  still  regarded 
as  in  force,  the  amendments  of  which  were  submitted  to  the  vote 
of  the  people  of  the  State  for  their  approval  or  rejection.  They 
were  afterwards  approved  by  a  vote  of  28,119  ^^  favor,  to  23,400 
against  them. 

The  important  ordinances  were  these  declaring  that  the  ordi- 
nance of  secession  is  null  and  void,  and  renouncing  the  claim  of 
the  right  of  the  State  to  secede;  declaring  the  war  debt  to  be  void 


OUR    FEDERAL    RELATIONS.  77 

and  preventing  the  Legislature  from  making  provision  for  its  pay- 
ment; making  valid  the  laws  and  acts  of  the  officers  of  the  State 
since  the  ist  of  February,  1861,  which  were  not  in  conflict  with  the 
Constitution  and  laws  of  the  United  States,  and  making  various 
other  provisions,  the  general  effect  of  which  was  to  cause  the  gov- 
ernment of  Texas  during  the  war  to  be  judicially  regarded  as  a  gov- 
ernment de  facto,  without  the  necessity  of  proving  that  [fact,  and 
also  declaring  the  slaves  to  have  been  set  free  within  this  State,  by 
the  government  of  the  United  States  by  force  of  arms,  and  by  the 
amendment  of  the  Constitution  of  the  United  States  (then  lately 
adopted),  and  declaring  their  equality  before  the  law  ir»  the  enjoy- 
ment of  their  rights  of  life,  liberty  and  property,  and  allowing  them 
to  be  witnesses  in  all  cases  where  one  of  their  own  race  might  be 
a  party.  This  ordinance  was  entitled  "Freedmen,"  and  was  incor- 
porated in  the  amended  Constitution  as  Art.  VIII,  Sections  i  and 
2,  though  it  was  not  submitted;  but,  as  the  other  ordinances,  was 
passed  unconditionally.  The  amendments  that  were  submitted 
to  the  vote  of  the  people,  related  mainly  to  but  few  subjects,  to- 
wit:  a  change  in  the  mode  of  altering  and  amending  the  Constitu- 
tion, providing  for  calling  a  conyention,  releasing  to  grantees  or 
owners  of  the  soil  the  interest  of  the  State  in  mines  and  mineral 
substances;  enabling  the  Legislature  to  guarantee  railroad  bonds 
under  certain  regulations  and  restrictions;  enabling  the  counties 
to  tax  themselves  for  subscriptions  for  railroad  stock;  defining  and 
appropriating  a  school  fund  for  "the  white  scholastic  inhabitants," 
and  providing  that  educational  taxes  collected  from  persons  of 
African  descent  should  be  devoted  to  the  education  of  their  chil- 
dren; lengthening  the  terras  of  most  of  the  officers  of  the  State, 
with  an  increase  of  their  salary  to  compensate  for  the  depreciation 
of  the  United  States  currency  in  which  they  would  be  paid  for 
some  time  at  least;  and  revising  and  reforming  somewhat  at  length 
the  "judicial  department." 

The  amendments  to  the  judicial  department  were  designed 
mainly  to  give  completeness  to  it  as  a  whole.  The  number  of 
justices  of  the  Supreme  Court  was  increased  to  five,  who  should 
elect  a  chief  justice  to  preside,  and  any  three  of  them  should  con- 
stitute a  quorum  to  do  business,  and  extended  their  term  of  service 
to  ten  years. 

The  district  judges  were  to  hold  their  offices  for  eight  years. 
The  county  court  was  given  a  civil  and  criminal  jurisdiction  over 
minor  offenses,  and  over  debts  not  over  five  hundred  dollars.  The 
Legislature  was  allowed  to  provide  for  criminal  courts  in  cities. 
The  jurisdiction  of  the  right  of  appeal  from  the  several  courts 
were  more  particularly  defined  than  previously,  without  any  radi- 
cal change.  This  Constitution  left  the  government  of  the  State 
solely  in  the  hands  of  the  white  race,  by  not  giving  to  the  freed- 
men the  right  of  suffrage,  or  the   right   to  hold  office.     There  was 


78  OUR    FEDERAL    RELATIONS. 

an  effort  to  enfranchise  them  by  the  establishment  of  what  was 
then  termed  "impartial  suffrage," — making  the  test  of  the  right  to 
be,  the  capacity  to  read  and  write.  It,  however,  was  very  weakly 
supported,  notwithstanding  it  was  recommended  by  the  provisional 
governor.  The  great  struggles  were  upon  the  ordinance  disposing 
of  the  ordinance  of  secession,  and  as  to  whether  it  should  be  de- 
clared to  be  null  and  void  (as  an  existing  fact),  or  be  declared  to 
have  been  void  ab  initio  (as  a  principle);  and  upon  the  ordinance 
rendering  valid  certain  laws  and  acts  of  officers  fixing  the  status  of 
the  government  during  the  war  as  a  government  de  facto.  Upon 
the  first  of  these  questions  the  members  were  very  equally  divided, 
with  a  small  majority  for  declaring  the  ordinance  of  secession 
simply  null  and  void  as  a  matter  of  fact. 

Upon  the  second  question  there  was  a  large  majority  in 
favor  of  regarding  the  government  during  the  war  de  facto.  It  was 
a  matter  of  the  first  importance  to  have  this  question  determined 
in  this  way  by  the  political  authority.  It  was  upon  this  ordinance 
chiefly  (called  the  omnibus  bill  from  its  embracing  a  series  of 
measures),  that  the  parties  were  exhibited,  that  had  been  forming 
during  the  session  of  the  convention.  Those  in  favor  of  the  ordi- 
nance were  the  secessionists  and  moderate  Union  men,  forming  the 
conservative  party  in  the  State.  Those  opposed  to  it  were  the  ex- 
treme Union  men,  forming  the  radical  party,  or,  as  they  styled 
themselves,  the  Union  Republican  party.  The  former  were  in  favor 
of  President  Johnson's  plan  of  reconstruction  strictly.  The  latter 
assumed  to  support  the  "President  and  Congress"  in  reconstruct- 
ing the  State,  but  finally  fell  into  the  full  support  of  Congress  jn 
opposition  to  the  President's  plan. 

An  election  for  State  officers  under  the  Constitution,  as  well  as 
a  vote  upon  the  amendments  having  been  ordered  to  take  place  on 
the  fourth  Monday  in  June,  1866,  so  as  to  complete  the  full  organ- 
ization of  the  State;  and  a  meeting  of  the  Legislature  on  the  first 
Monday  in  August  thereafter,  it  was  thought  expedient  by  the 
parties  to  hold  caucuses  and  nominate  candidates  for  the  respect- 
ive State  offices. 

Ex-Gov.  Pease  headed  the  union  republican  ticket,  and  James 
W  Throckmorton  headed  the  conservative  ticket,  which  was 
elected  by  a  very  large  majority.  The  gentlemen  elected  to  the 
bench  of  the  Supreme  Court,  were  George  F.  Moore,  Stockton  P. 
Donley,  Richard  Coke,  Geo.  W.  Smith  and  Asa  M.  Willie,  and  by 
them  Geo.  F,  Moore  was  chosen  chief  justice.  They  were  all  of 
them  good  lawyers.  Chief  Justice  Moore  had  been  on  the  su- 
preme bench  during  the  war.  The  Legislature  met  on  the  first 
Monday  in  August,  and  entered  upon  the  business  of  passing  such 
laws  as  were  deemed  necessary  to  readapt  the  State  to  its  changed 
condition;  elected  two  senators,  and  made  provision  for  the  elec- 
tion of  four  representatives  to  the  Congress  of  the   United  States, 


OUR    FEDERAL    RELATIONS.  79 

who  were  elected  during  the  succeeding  fall,  three  of  whom,  to- 
gether with  the  senators  elect,  presented  themselves  as  representa- 
tives of  their  State,  to  the  Congress  at  Washington  City  at  the  ses- 
sion in  December  thereafter.  The  senators  elected  were,  Ex- 
President  David  G.  Burnet  and  Ex-Chief  Justice  O.  M.  Roberts; 
the  representatives  were,  Geo.  W.  Chilton,  A.  M.  Branch,  B.  H. 
Epperson  and  Clabe  Herbert,  none  of  whom  were  admitted  to 
seats  in  the  Congress  of  the  United  States. 

The  freedom  of  the  slaves  made  it  incumb^t  upon  the  Legis- 
lature to  endeavor  to  regulate  the  conduct  and  control  of  a  large 
body  of  persons,  who  had  heretofore  been  provided  for,  taken  care  of 
and  governed  for  the  most  part  by  the  owners.  This  had  been  one 
reason  that  had  induced  the  convention  to  confer  criminal  and 
civil  jurisdiction  upon  the  county  court.  The  Legislature  regu- 
lated the  proceedings,  of  said  court  in  the  exercise  of  said  jurisdic- 
tion so  as  to  have  frequent  terms.  With  the  same  object,  an  ap- 
prentice law,  a  vagrant  law,  a  labor  law,  and  a  law  defining  and 
declaring  the  rigots  of  colored  persons;  a  law  defining  persons  of 
color  to  be  all  those  having  one-eighth  or  more  of  African  blood; 
and  a  law  requiring  railroad  companies  to  furnish  a  passenger  car 
for  freedmen.  (The  labor  act,  however,  was  annulled  by  a  mili- 
tary order,  and  has  not  been  enforced.) 

To  encourage  immigration  to  the  State,  a  pre-emption  was 
granted  to  settlers  upon  the  public  domain;  and  a  resolution  was 
passed  inviting  capital  and  skilled  labor.  A  law  was  passed 
authorizing  the  records  of  the  confederate  courts  within  the  State 
to  \)e  transferred,  so  as  to  become  records  in  the  federal  coyirts. 

Having  tn  view  the  public  improvements,  acts  were  passed  cre- 
ating the  office  of  State  engineer;  regulating  the  subject  of  rail- 
roads by  amendments  and  by  new  provisions;  a  joint  resolution 
was  passed  reviving  the  geological  survey  that  had  been  suspended 
during  the  war.  There  were  also  acts  passed  to  collect  arms  and 
other  public  property.  A  great  many  private  acts  were  passed, 
chartering  companies  for  various  purposes,  including  manufactur- 
ing, mining,  and  educational  companies.  And  a  law  was  passed 
to  locate  and  establish  two  universities.  There  were  various 
amendments  made  to  both  the  civil  and  criminal  laws  with  a  view 
to  improve  their  operation.  The  offices  of  the  ^tate  were  gener- 
ally filled,  the  courts  were  opened  for  business,  and  every  part  of 
the  State  government  was  very  soon  in  full  operation  under  the 
new  Constitution.  The  United  States  re-established  the  mails  and 
postoffices,  the  federal  courts,  and  revenue  collections.  The  State 
had  done  everything  necessary  to  resume  its  federal  relations  that 
was  in  the  plan  of  the  President.  Nothing  seemed  to  be  wanting 
but  the  reception  of  her  Senators  and  Representatives  into  Con- 
greas  of  the  United  States.  Under  these  circumstances  the  people 
of  the  State  generally  were  much  encouraged;  went   to  work  in  all 


So  OUR    FEDERAL    RELATIONS. 

of  the  departments  of  industrial  and  professional  life;  and  were 
inspired  with  the  hope  of  emerging  from  their  pecuniary  difficul- 
ties and  the  general  despondency  consequent  upon  the  fate  of  the 
war.  This  prospect,  however,  had  a  drawback.  From  time  to 
time,  while  the  policy  of  the  President  was  thus  being  carried  out, 
the  Congress  passed  acts  which  looked  to  a  very  different  plan  of 
reconstruction.  Under  their  slow  progress  and  operation  the  plan 
of  the  President  was  finally  undermined  and  defeated,  and  the  of- 
cers  that  had  been  elected  by  the  people,  were  turned  out  after 
havtng  served  about  one  year,  and  their  places  were  filled  by  mili- 
tary authority.  The  Congressional  plan  was  engrafted  upon  ani 
supplanted  that  of  the  President. 


OUR    FEDERAL   RELATIONS.  8l 


AN  ADDRESS. 


[Drawn  up  by  O.  M.  Roberts,  exhibiting  the  history  and  the  then 
existing  condition  of  Texas  in  regard  to  its  Federal  Relations, 
with  reasons  why  its  delegation  should  be  admitted  to  seats  in 
Congress,  to  which  they  had  been  elected  in  1866;  which  being 
signed  by  the  members-elect  then  in  Washington  City,  on  the 
loth  day  of  January,  1867,  was  published  in  the  Natioftal  Intelli- 
gencer,— the  organ  of  President  Johnson's  administration — and 
circulated  over  the  United  States.  That  was  the  only  such  ad- 
dress that  was  ever  published,  as  a  sort  of  protest,  by  any  of  the 
delegations  of  the  Southern  States,  whose  members  had  been  ex- 
cluded from  Congress.  It  was  a  protest  against  being  put  under 
military  rule,  as  Congress  was  then  preparing  to  do.] 


To  the  Congress  and  People  of  the  United  States: 

We,  having  been  chosen  to  represent  the  State  of  Texas  in  the 
Congress  of  the  United  States,  and  not  having  been  admitted  to 
seats,  take  this  mode  of  presenting  the  following  facts  and  views 
relating  to  her  history,  present  condition,  and  Federal  relations: 

Anterior  to  the  revolution  of  1835  and  1836,  Texas  was  a  part  of 
Coahuila  and  Texas  in  the  Republic  of  Mexico.  By  the  intelli- 
gence and  valor  of  its  citizens,  prompted  by  an  ardent  love  of  free- 
dom, it  established  a  separate  nationality,  which  was  recognized 
by  the  United  States,  and  by  the  leading  nations  of  Europe,  and 
which  it  maintained  against  the  power  of  Mexico,  and  the  ravages 
of  savage  tribes  for  ten  years,  exercising  the  powers  externally  and 
internally  of  a  perfect  sovereignty, — being  a  nation  among  nations. 
Resting  on  the  Gulf  of  Mexico  for  its  outlet  to  the  commerce  and 
intercourse  of  the  world,  spreading  out  over  a  vast  and  fertile  ter- 
ritory, yielding  rich  harvests  of  all  the  varied  and  valuable  pro- 
ductions of  the  temperatjC  zone,  she  was  an  empire  within  herself, 
self-sustaining,  and  capable  of  the  highest  material  and  intellect- 
ual development;  with  all  her  interests  anfl  institutions  combined 
and. harmonized  under  a  representative  republic. 

By  annexation  in  1845-6,  she  surrendered  her  separate  national- 
ity to  become  a  State  in  the  United  States  of  America.  It  was 
done  by  the  almost  unanimous  voice  of  her  people,  without  com- 


82  OUR    FEDERAL    RELATIONS. 

pulsion  from  any  quarter,  without  any  necessity,  impending  or 
prospective, — the  alternative  being  then  presented  to  her  of  "an- 
nexation to  the  United  States,"  or  "independence  acknowledged  by 
Mexico  and  guaranteed  by  Great  Britain  and  France."  In  that 
act  was  exhibited  an  unselfishness,  a  devotion  to  American  unity, 
which  challenges  comparison  with  the  memorable  example  of  Vir- 
ginia and  other  Southern  Colonies fn  the  revolution  of  T776.  Her 
entrance  into  the  Federal  Union,  while  it  caused  a  great  influx  of 
population,  and  hastened  prosperous  development,  entailed  upon 
her  the  political  agitations  common  to  h^r  sister  States.  Her  re- 
moteness from  the  center  of  political  power  subjected  her  to  mauy 
disadvantages,  among  the  most  prominent  of  which  was  the  want 
of  adequate  protection  against  the  continuous  depredations  of  sav- 
age tribes  of  Indians  on  her  frontier,  by  whom  thousands  of  her 
people, — men,  women,  and  children — were  murdered  or  taken  into 
captivity,  and  vast  amounts  of  their  property  stolen  from  time  to 
time.  These  shocking  barbarities  are  now'being  perpetrated,  and, 
within  the  last  eighteen  months,  have  caused  the  frontier  to  recede 
from  thirty  to  fifty  miles  along  the  whole  border. 

This  has  often  made  it  necessary  for  the  State  to  place  a  milita- 
ry force  of  its  own  on  the  frontier  at  great  expense,  for  which  it 
has  never  yet  been  fully  reimbursed.  In  1861,  lexas,  in  conven- 
tion, passed  the  ordinance  of  secession,  and  participated  with 
other  sister  States  in  the  formation  of  the  Southern  Confederacy. 
It  was  regarded  as  certain  that  six  or  seven  of  the  Southern  States 
would  secede.  Texas  had  either  to  follow,  or  stand  still.  To  stand 
still  was  to  be  rent  in  twain  by  civil  war  at  home.  The  State  was 
sectionally  divided  on  the  question,  and  nothing  but  a  vote  of  the 
people,  promptly  taken,  and  acquiesced  in  by  the  minority  could 
then  save  her  from  the  horrors  of  a  civil  war,  and  make  her  peo- 
ple a  unit  on  one  side  or  the  other.  Having  thus  made  her  decis- 
ion, the  mass  of  the  people  sustained  the  cause  of  the  South  during 
the  whole  time  of  the  war.  Whatever  wrongs  and  outrages  may 
have  occurred  as  amongst  themselves,  this  unity  thus  produced 
saved  the  State  from  a  hundredfold  more,  that  would  have  occur- 
red without  it.  Probably,  too,  it  saved  the  country  from  the  deso- 
lation of  fire  and  sword,  that  swept  over  other  States.  It  also  left 
it  possible,  at  the  close  to  harmonize  society,  and  adapt  it  to  the 
changed  condition  of  public  affairs,  without  the  distraction  of  ir- 
reconcilable feuds,  engendered  between  neighbors  and  families 
during  the  struggle. 

The  causes,  which  led  to  this  great  war  between  the  two  sec- 
tions, had  taken  deep  toot  long  before  Texas  entered  the  Union. 
One  class  of  thinkers  believed  that  they  saw  in  the  language  and 
spirit  of  the  Constitution  of  the  United  States  a  plain  indication  of 
intention,  on  the  part  of  its  framers,  that  the  government  should 
be  shaped  to  the  discouragement  rather  than  the  encouragement 


OUR    FEDERAL    RELATIONS.  83 

and  extension  of  the  institution  of  slavery;  while  another  class  be- 
lieved it  was  intended  to  protect  and  permit  the  spread  of  that  in- 
stitution. One  class  of  thinkers  believed  that  in  the  adoption  of 
the  Constitution  of  the  United  States,  the  people  of  each  State, 
previously  distinct,  became  merged  and  amassed  into  one  people, 
for  certain  purposes  embraced  within  the  scope  and  objects  of  that 
Constitution,  and  to  that  extent  lost  a  portion  of  their  State  sover- 
eignty; whereas,  another  class  thought  that  the  people  of  each 
State  retained  their  exclusive  identity  as  a  sovereign  State,  and 
could,  therefore,  withdraw  the  powers  delegated  to  the  general  gov- 
ernment by  the  State.  For  it  was  hardly  ever  questioned,  but  that 
a  sovereign  power, — the  people, — could  "reform,  alter  or  abolish" 
their  form  of  government.  But  the  question  was,  who,  for  that 
purpose,  in  reference  to  the  general  government,  constituted  tke 
people.  The  Constitution,  as  it  was  thought,  did  not,  in  express 
terms,  settle  either  of  these  questions, — slavery  or  secession.  Con- 
struction, -anology,  and  the  facts  of  history  were  resorted  to  for 
their  solution.  The  greatest  intellects  of  the  country,  for  more 
than  fifty  years,  had  exhausted  the  arguments  on  both  sides,  and  had 
continually  diverged  the  more  the  longer  they  debated  them. 
These  different  constructions  necessarily  led  to  radically  different 
results,  in  the  scope  and  action  of  the  government,  and  in  the 
modeling  of  society  under  it.  One  was  adapted  to  the  progressive 
ideas  of  the  North,  the  other  to  the  stationary  views  of  the  South. 
The  weaker  party  sought  to  escape  the  consequence  of  the  con- 
struction of  the  stronger,  by  withdrawing  from  the  Union, — not  to 
prevent  the  Northern  States  from  retaining  the  government  over 
themselves  with  their  own  construction;  but  to  insure  its  preserva- 
tion as  to  the  Southern  States  as  they  understood  it. 

This  statement  of  these  questions,  that  have  been  settled,  is  here 
made  for  the  purpose,  and  for  the  purpose  only,  of  disrobing  them 
of  numerous  iritating  adjuncts,  and  incidents  of  passion  and  preju- 
dice; of  inviting  a  liberal  and  charitable  consideration  for  the 
motives  of  the  mass  of  those  in  Texas,  who  participated  i  i  seces- 
sion, and  to  facilitate  a  more  ready  comprehension  of  the  reasons 
why  the  minority,  who  did  not  want  to  secede  so  promptly  ac- 
quiesced in  the  decision  of  the  majority;*by  which  the  unity  of  the 
people  was  secured  and  preserved.  The  war  was  brought  on  by 
these  questions  and  their  surroundings.  The  South  was  over- 
whelmed by  a  superior  force.  Measures  of  conciliation,  pacifica- 
tion, and  readjustment,  were  set  on  foot  by  the  President,  which 
were  responded  to,  and  acted  on  by  the  people  of  Texas  by  taking 
the  amnesty  oath,  by  amending  their  Constitution,  which  was  in 
force  previovs  to  1861,  acknowledging  the  supermacy  of  the  Con- 
stitution and  laws  of  the  United  States,  declaring  the  ordinance  of 
secession  null  and  void,  and  renouncing  the  claim  of  the  riglit  of 
the   State  to  secede,   declaring  the  slaves  to  have  been  freed,  and 


84  OUR    FEDERAL    RELATIONS. 

preventing  involuntary  servitude  except  for  crime  within  the  limits 
of  the  State,  ordaining  the  full  protection  of  the  equal  civil  rights 
and  immunities  of  all  persons,  irrespective  of  color,  and  forbidding 
the  legislature  forever  thereafter  from  making  any  provision  for  the 
payment  of  any  debts  of  the  State,  or  of  the  Confederate  States, 
contracted  during  the  war.  Under  this  amended  Constitution  the 
officers  of  the  State  have  been  elected,  supplanting  those  of  the 
provisional  government,  and  are  in  the  performance  of  their  duties, 
— the  organization  of  the  State  government  being  as  complete  as 
it  ever  was  before  the  war,  in  full  harmony  with  the  Constitution 
and  laws  of  the  United  States,  and  commanding  the  respect,  con- 
fidence, and  obedience  of  the  great  body  of  the  people.  The  laws 
of  the  United  States  are  being  executed  within  its  limits,  without 
hindrance  or  resistance  from  the  people  or  State  authorities.  The 
federal  army  is  on  our  frontier  for  protection.  The  federal  judi- 
eiary  are  performing  their  functions.  The  United  States  mails  are 
being  carried  all  over  the  State.  The  navy  is  protecting  our  com- 
merce. The  officers  of  customs  and  internal  revenue  are  doing 
their  duty,  and  the  people  are  paying  their  duties  and  taxes,  as  in 
other  States.  What  more  could  be  said  of  the  Stales  of  New  York 
and  Ohio,  except  that  they  have  their  senators  and  representatives 
in  Congress  to  speak  for  and  represent  the  rights,  interests,  and 
necessities  of  their  States,  and  to  defend  their  people  from  unjust 
aspersions  and  misrepresentations,  when  necessary. 

Texas  was  annexed  or  admitted  into  the  Union  by  an  act  of  Con- 
gress (December,  1845),  which  has  never  been  repealed,  and  she  is 
now  performing  the  duties,  and  resting  under  the  obligations  of  a 
State  in  the  Union,  except  that  one  of  the  departments  of  the  gov- 
ernment— the  Congress — has  not  admitted  its  senators  and  repre- 
sentatives elect  to  seats  within  their  respective  bodies.  They  are 
left  to  learn  the  reasons  of  their  non-admission,  from  the  debates 
and  measures  proposed  in  Congress,  and  from  public  discussions 
upon  the  subject,  rather  than  from  any  specific  legislative  action. 

The  adoption  by  a  State  of  the  amendment  to  the  Constitution 
proposed  at  the  last  session,  was  not  expressly  declared  to  be  suffi- 
cient to  entitle  it  to  representation,  and  that  it  was  so  intended  is 
now  denied  by  leading  members  of  great  ability  and  influence. 
Texas  is  charged  with  disloyalty  in  not  doing  it,  while  it  is  claimed 
that  she  is  not  in  a  situation  to  have  done  so  as  being  out  of  the 
Union.  Texas  did  not  adopt  it,  because  she  believed  its  provis- 
ions prejudicial  to  her  best  interest  and  dangerous  to  the  public 
good.  But  then  she  had  no  reliable  and  sufficient  inducement  to 
aid  in  engrafting  principles  upon  the  government,  which  she  did 
not  approve,  and  to  make  a  sweeping  disqualification  of  so  many 
of  her  useful  citizens,  as  to  make  it  almost  amount  to  self-imposed 
degredation.  She  may  yield  to  such  a  fate  if  imposed  by  others, 
or  possibly  under  some  species  of  duress,  and   it   is   to  be  hoped 


OUR   FEDERAL    RELATIONS.  85 

that  her  people  will  do  it,  if  they  must,  with  the  uncomplaining  forti- 
tude and  unshrinking  manhood  that  have  characterized  them  in 
every  emergency.  But  is  it  not  indeed  asking  too  much  of  such  a 
people  to  do  it  themselves? 

It  is  alleged  to  the  prejudice  of  Texas,  that  she  has  elected 
senators  and  representatives,  who  cannot  take  the  test-oath.  It  is 
taken  as  an  evidence  that  her  people  are  seeking  to  reward  those 
who  were  formerly  prominent  in  opposing  the  government.  That 
it  is  believed  is  a  misconception  of  the  subject ;  for  with  the  very 
slight  prospect  of  getting  seats,  it  could  not  have  been  regarded  as 
a  very  valuable  reward.  In  times  of  great  trial,  dread  and  gloom 
in  the  political  horizon,  the  people  are  not  likely  to  select  men  as 
mere  objects  of  reward,  but  far  more  likely,  because  they  are  rep- 
resentatives in  fact.  The  test-oath  at  most  was  regarded  as  a  war 
measure,  and  was  supposed  to  be  founded  on  the  feeling  (rather 
than  the  principle),  that  "the  preservation  of  the  life  of  the  nation 
is  a  public  duty,  rising  above  the  Constitution  and  the  laws  of  the 
United  States."  Such  a  proposition  is  not  to  be  reasoned  upon, 
not  being  susceptible  of  argumentation.  The  feeling,  upon  which 
it  was  founded,  has  been  kept  alive  far  beyond  any  conceivable 
occasion  for  its  exercise.  If  however  it  is  assumed  to  be  founded 
on  any  part  of  the  written  constitution,  it  is  persumed  to  be  on  that 
clause,  which  makes  each  house  the  judge  of  the  "qualifications'' 
of  its  own  members.  If  the  term  here  quoted  can  be  construed  to 
mean  any  thing,  other  than  those  prescribed  for  members  in  the 
Constitution,  then  the  judgment,  as  to  general  fitness  of  each  house 
of  Congress  becomes  the  standard  of  qualification,  which  could  be 
used  to  perpetuate  their  principles,  after  a  majority  of  their  electors 
were  opposed  to  them,  and  thereby  make  the  agent  superior  to  the 
principal,  which  is  destructive  of  representative  republican  govern- 
ment. It  is  thought,  however,  that  it  was  commonly  believed  that 
if  the  State  was  allowed  to  be  represented  at  all,  the  two  houses 
would  not  retain  this  rule  of  exclusion. 

It  is  said  that  the  people  of  Texas  are  disloyal  and  rebellious  in 
disposition  still.  If  that  were  all,  it  would  hardly  in  other  'times, 
be  held  to  be  a  good  ground  for  excluding  its  representatives  ;  for 
that  would  establish  the  precedent,  that  a  majority  in  Congress 
could  exclude  the  delegation  from  a  State,  whose  people,  in  their 
judgment,  were  manifesting  a  rebellious  and  disloyal  spirit,— which 
might  often  be  the  case  in  times  of  high  party  rancor  and  strife. 
But  admitting  that  under  the  present  pressure  of  disfavor,  we  have 
to  be  judged  by  that  rule,  we  beg  it  to  be  considered,  that  Texas 
has  no  voice  of  her  own  in  Congress  to  explai  i  or  contradict 
statements  made  about  the  condition  and  temper  of  her  people. 
Further,  it  must  occur  to  any  reflective  mind,  how  readily  the 
general  tone  of  sentiment  in  the  states  of  Massachusetts  and  Illinois 
as  well  as  in  Texas,  might  be  wholly  misunderstood,  by  consider- 


86  OUR    FEDERAL    RELATIONS. 

ing  only  the  bad  actions  and  idle  expressions,  here  and  there 
scattered  over  a  large  country,  and  perhaps  reported  ex-parte,  with 
the  exaggerations  and  coloring  of  prejudiced  informers.  Where  do 
members  of  Congress  get  their  information?  Not  from  the 
messages  of  the  President.  Not  from  the  reports  of  the  general  of 
the  army.  Not  from  any  published  reports  of  the  officers  of  the 
judicary  or  revenue  in  Texas,  Not  from  our  patriotic  and  vigilant 
Governor,  or  other  State  officers.  It  is  but  fair  dealing  to  recollect 
that  there  may  be  dissappointed  men,  and  violent  partisans,  and 
even  good  men,  as  well  as  those  not  falling  under  that  class,  who 
are  continually  seeing  things  around  them  in  a  distorted  light. 
Besides,  it  is  not  to  be  disguised  that  there  is  a  class  of  men  in  and 
out  of  Texas,  small  though  they  maybe  (in  number)  who  seem  to 
be  endeavoring  to  bring  her  people  in  as  bad  odor  as  po*Ssible  be- 
fore the  public  mind.  In  grave  questions,  involving  the  future 
destiny  of  a  great  State,  ordinary  prudence  would  dictate  a  careful 
examiuation  into  the  facts,  upon  which  national  action  is  to  be 
based. 

We  respectfully  solicit  the  most  searching  and  extensive  inquiry 
as  to  the  real  facts  on  this  subject. 

As  part  of  the  representatives  chosen  by  the  State,  we  assert  it  as 
our  sincere  belief  that  the  great  body  of  the  people  of  Texas  are 
loyal  to  the  government  of  the  United  States  and  now  have  the 
most  intense  desire  to  obliterate  all  cause  of  animosity  betwen  the 
sections,  and  to  enter  upon  a  social  and  material  development, 
that  will  redound  to  the  power  and  stability  of  the  whole  Union. 
What  motive  have  they  otherwise  ?  During  the  late  struggle,  they 
looked  to  foreign  powers  for  help.  It  came  not.  Disgust  and 
bitter  estrangement  followed  disappointed  hopes.  An  asylum  was 
searched  for  by  many  in  Mexico,  Brazil  and  other  countries. 
There  they  found  and  reported  the  evils  in  reality,  they  were  seek- 
ing to  escape  from  in  anticipation  at  home.  They  are  looking  to 
no  other  land  as  their  abode  and  that  of  their  children.  They 
are  entirely  satisfied  with  the  experiment  of  division,  and  are  re- 
signed to  their  losses  and  sacrifices.  They  aspire  to  arise  from  the 
new  standpoint,  and  to  be  part  and  parcel  in  the  great  progress  of 
their  race  on  this  continent.  Texas  will  stand  by  the  flag  of  the 
United  States  against  any  nation  on  earth,  and  the  descendants  of 
the  heroes  of  San  Jacinto  will  contest  the  palm  on  any  field  where 
the  country's  foe  may  be  met,  with  the  descendants  of  the  heroes  of 
Bunker  Hill. 

It  is  said  that  Northern  men,  "Southern  loyalists"  and  negroes 
are  badly  treated  in  Texas,  and  that  the  laws  are  so  administered 
as  to  furnish  them  no  adequate  protection.  This  ordinarily  would 
hardly  be  considered  good  ground  for  the  non-admission  of 
members  of  Congress,  being  purely  a  matter  of  State  jurisdiction. 
But  30  far  from  this  assertion  being   true,    we    are    prepared    from 


OUR    FEDERAL    RELATIONS.  87 

personal  experience  and  recent  observation  to  assert  that  there  are 
thousands  of  Northern  men  and  Southern  loyalists  now  in  Texas 
who  are  no  more  the  objects  of  insult  and  injury  than  any  one  else; 
and  for  any  offense  committed  against  them  they  would,  as  it  is 
believed,  find  in  the  courts  an  ^impartial  redres  of  them.  The 
judicary  from  the  supreme  bench  down,  so  far  as  known  to  us,  are 
men  of  high  character  of  intelligence,  and  integrity,  independence 
and  impartiality,  and  would  scorn  to  shrink  from  the  discharge  of 
a  duty  from  considerations  of  party  or  political  opinion,  as  readily 
«s  they  would  in  any  other  State  or  country.  As  to  the  negroes,  it  is 
not  to  be  expected  that  the  prejudice  against  an  inferior  class 
would  be  banished  in  a  day  or  a  year  ;  still  in  the  main  they  are 
treated  humanely  and  justly  by  the  whi;es,  and  when  such  has  not 
been  the  case,  they  have  appealed,  and  are  now  constantly  appeal- 
ing to  our  own  courts  for  redress  and  not  in  vain. 

If  society  is  allowed  to  adjust  itself,  as  it  new  is  certainly  doing, 
and  will  do,  a  public  opinion  will  be  formed  for  the  protection  of 
the  negro  in  every  respect.  When  reports  of  personal  injuries, 
either  to  blacks  or  whites  are  heard,  it  should  be  borne  in  mind 
that  in  the  Southwest  the  people  are  more  prone  to  personal 
encounters  than  in  the  North  ;  that  the  country  is  sparsely  settled 
over  a  vast  extent,  and  that  from  these  and  other  such  causes,  the 
laws  punishing  offenses  of  personal  violence  have  never  been  as 
rigidly  and  certainly  executed  as  in  the  older  States.  This  is  not 
peculiar  to  Texas.  Nor  is  there  any  reason  to  believe,  that  the 
laws  are  not  as  well  executed  there  as  they  were  before  the  war,  or 
that  there  are  any  more  crimes  of  that  character  now  being  com- 
mited  than  were  usual  before  the  war.  The  people  of  Texas,  per- 
suing their  ordinary  peaceful  avocations,  would  doubtless  be  amaz- 
ed at  the  exaggerated  impressions  produced  in  the  North  of  their 
alleged  enormities  against  the  weaker  portion  of  their  community. 
It  is  a  part  of  cowardice  and  not  of  bravery  to  concert  or  encourage 
a  systematic  oppression  of  the  weak.  How  can  such  a  thing  be 
believd  of  such  a  people, — a  people  whose  courage  has  added  lustre 
to  the  name  of  Texas,  in  every  field  where  its  flag  has  floated,  from 
the  time  of  its  birth  as  a  nation  to  the  present.  Isolated  instances 
of  wrong  from  impulse  and  passion  will  occur,  and  bad  men  will 
here  and  there  continue  to  do  wrong  no  doubt.  These  are  the 
exceptions,  not  the  rule.  During  several  months  after  the  close  of 
the  war,  a  few  negroes  were  killed  in  difl"erent  parts  of  the  State, 
and  other  wrongs  were  committed  by  bad  men,  but  to  those  who 
understand  the  facts,  it  is  matter  of  surprise,  that  there  were  not 
ten  times  as  many  crimes  committed  as  there  were.  Upon  the 
surrender  of  the  forces  east  of  the  Missippi  river,  those  west  of  it 
regarding  further  efforts  to  maintain  a  separate  independence  futile, 
with  one  accord  broke  up  their  camps  and  departed  for  their 
homes,  traversing  the  country  in  all  directions  with  arms  in   hand, 


88  OUR    FEDERAL    RELATIONS, 

and  without  the  restraint  of  commanders.  Several  months  after- 
wards a  nearly  similar  scene  occurred  by  the  soldiers  going  to 
places  to  be  paroled.  In  the  meantime  the  negroes  were  declared 
to  be  free  by  military  order,  many  of  whom  left  their  homes,  and 
wandered  about  over  the  country.  There  were  only  a  few  military 
posts  established  hundreds  of  miles  apart.  For  three  months  there 
was  no  civil  officer,  who  knew  that  his  interference  to  preserve 
order  would  be  tolerated  by  the  federal  authorities.  During  this 
whole  period  of  confusion  and  disorganization,  there  was  a  moral 
restraint  pervading  the  masses,  which  so  reduced  the  amount  of 
crime  below  what  might  have  been  expected,  as  to  present  the 
civilization  of  our  people  in  a  light  of  elevated  grandeur,  never 
before  contemplated  of  it.  The  truth  is  now,  that  all  classes  of 
persons  have  gone  to  work  in  some  avocation  with  a  spirit  and 
energy  redoubled  by  their  losses,  to  improve  their  fortunes,  and 
to  develop  the  resources  of  the  country,  directing  their  attention 
more  then  ever  before  to  factories,  railroads,  and  whatever  else 
will  tend  to  advance  their  industrial  and  social  interests.  In  the 
race  of  competition  in  these  pursuits,  previous  differences  will  be 
forgotten,  passions  and  prejudice*  will  subside,  all  classes  will 
find  their  proper  level,  and  general  protection  of  each  and  all  will 
be  commensurate  with  the  common  interest. 

It  is  now  proposed  as  a  means  of  protecting  "Southern  loyalists," 
Northern  men,  and  negroes,  and  of  reforming  State  governments 
now  existing,  either  directly  or  through  territorirl  governments, 
to  erect  new  State  governments,  based  upon  the  suffrage  of  the 
Southern  loyalists,  and  negroes,  and  upon  the  disfranchisement 
and  disqualification  from  office  of  all  those  who  adhered  to  and 
aided  in  the  "rebellion,"  exepting  only  those  who  may  be  relieved 
from  such  disability  by  Congress.  This  plan  is  understood  to  be 
proposed  by  some  of  the  Southern  loyalists  themselves,  and  advocat- 
ed by  prominent  members  of  Congress. 

It  presents  an  entirely  new  feature  in  our  affairs,  that  rises  above 
the  mere  exclusion  of  our  repreientatives  from  Congress.  It 
takes  for  granted,  that  the  whole  question  of  war  and  peace  are 
still  open.  That  depends  upon  the  stubborn  facts  in  the  past,  and 
no  construction  can  now  alter  them,  and  warp  the  legitimate  de- 
ductions from  them.  What  are  they?  The  government  took 
measures  to  prevent  the  withdrawal  of  the  Southern  States,  and  by 
the  proclamations  of  the  President,  and  by  the  resolutions  of  both 
houses  of  Congress,  and  by  diplomatic  correspondence  with  other 
powers,  defined  its  object  in  carrying  on  the  war  to  be  for 
the  preservation  ©f  the  Union,  "with  all  of  the  dignity,  equality 
and  rights  of  the  States  unimpared  ;"  and  "not  in  any  spirit  of 
oppression,  nor  for  any  purpose  of  conquest  or  subjugation."  Such 
an  object,  so  declared,  raised  up  hosts  to  fight  the  battle  for  the 
Union,  and  stayed  the  hand  of  foreign   powers.     To  carry   it   out 


OUR    FEDERAL   RELATIONS.  89 

Congress  afterwards  authorized  the  President   to   extend    amnesty 
and  pardon. 

All  of  tiie  authoritative  acts  of  the  general  government  during 
the  whole  war,  it  is  believed,  spoke  the  same  language,  and  under 
and  by  that  policy  the  war  was  brought  to  a  successful  close.  It 
was  on  that  ground,  and  on  that  alone,  that  the  right  was  claimed 
to  prosecute  the  war  at  all.  It  was  on  that  ground,  that  the  Con- 
federate government  would  never  be  recognized,  and  therefore  no 
treaty  was  made  with  it  at  the  surrender.  The  manifest  intention, 
with  which  an  act  is  done,  forms  a  part  of  the  act  itself,  and  gives 
character  to  it. 

Considering  the  objects  of  the  war  as  here  shown,  and  as  made 
known  to  the  world,  and  acted  on  throughout,  the  surrender  of  the 
Southern  armies,  and  the  subsequent  acts  of  the  people  of  the 
States  of  the  South,  in  response  to  the  proclamations  and  orders  of 
the  President,  constitute  in  effect  a  pacification,  upon  terms  as  bind- 
ing upon  the  good  faith  of  the  government,  and  upon  the  Southern 
people,  as  though  they  had  been  stipulated  in  a  treaty.  This  prop- 
osition rests  upon  the  basis,  that  the  President  had  the  power  to 
use  the  means  which  he  did,  and  that  the  people  in  the  Southern 
States  have,  in  good  faith,  complied  with  what  was  required  or 
expected  of  them.  The  soldiers  of  the  Southern  army  surrendered 
under  the  obligation  to  repair  to  their  homes,  and  obey  the  laws 
of  the  country.  Under  a  law  of  Congress,  giving  the  President 
power  under  such  terms  and  conditions  as  might  meet  his  appro- 
bation, he  issued  his  proclomation  tendering  to  the  mass  of  the 
people  amnesty  and  pardon  upon  their  taking  an  oath  in  effect 
surrendering  the  issues  of  the  war,  secession  and  slavery.  After- 
wards, through  the  proclamations  the  President  instituted  pro- 
visional governments,  for  the  purpose  of  enabling  the  people  of  the 
States,  who  had  taken  the  oath,  to  reform  the  State  governments, 
and  resume  their  federal  relations  as  States  in  the  Union. 

Through  this  instrumentality,  and  for  such  purpose,  that  being 
the  consideration  in  part  inducing  them,  the  people  of  Texas 
responded  to  the  call  for  a  convention,  and  in  convention  by 
delegates  assembled  did  make  a  political  surrender  of  the  questions 
at  issue  in  the  war,  and  their  incidents,  as  previously  stated  herein, 
thereby  binding  not  only  those  who  had  been  bound  by  ihe  amnesty 
oath,  but  every  one  in  the  State,  with  their  posterity  after  them. 

Is  it  to  be  held  as  nothing,  that  a  people,  who  had  espoused 
cherished  principles  ofgovernment,  and  had  attested  their  sincerity 
in  a  struggle  in  camp  and  field  for  four  years,  should  by  affirmative 
action  surrender  them  under  the  solemnity  of  oaths  and  constitu- 
tions, and  thereby  dejjrive  themselves  of  the  privilege  in  conscience 
and  right,  to  revive  them,  should  an  opportunity  in  future  present 
itself?  They  did  it  in  good  faith,  and  did  it  not  for  the  love  of  the 
thing  itself,  but  upon    an    obvious  consideration, — to   be   enabled 


90  OUR    FEDERAL    RELATIONS. 

thereby  to  readjust  their  State  government,    and   to    restore   their 
federal  relations  in  the  Union. 

The  President  had  a  right,  we  believe,  to  effect  a  complete 
pacification  upon  such  terms.  Had  it  been  regarded  doubtful  we 
were  in  no  situation  to  call  it  in  question  without  great  disadvantage 
to  us.  It  would  have  been  denounced  as  evidence  of  an  incorrigi- 
bly rebellious  spirit,  if  we  had  refused  to  take  the  amnesty  oath, 
or  assemble  in  convention.  But  the  President  had  the  power,  we 
think,  not  that  he  is  the  government,  any  more  than  that  Congress 
or  the  federal  judiciary  is  the  government,  for  while  all  these 
departments  constitute  the  government,  each  one  of  them  represents 
and  binds  the  government,  when  acting  within  the  scope  of  its 
authority. — the  Congress  to  prescribe  the  rules  of  action,  the  Pres- 
ident to  execute  them,  and  the  judicary  to  construe  and  enforce 
them,  when  brought  within  the  scope  of  its  jurisdiction.  It  is  not 
to  be  denied  that  the  war  was  prosecuted  on  the  theory  of  the 
government,  that  a  State  had  no  right  to  secede,  and  that  the 
ordinances  of  secession  were  utterly  void  and  of  no  effect.  Under 
no  other  view  could  force  have  been  rightfully  used  to  prevent 
secession.  Under  this  view  the  President  needed  no  new  rule,  in 
view  of  the  declared  objects  of  the  war.  He  simply  held  the 
Southern  States  in  subjection  to  his  military  authority,  until  they 
voluntary  embraced  the  amnesty  and  pardon,  which  Congress  had 
authorized  him  to  tender  them,  and  conformed  their  State  govern- 
ments to  the  results  of  the  war  acquiesced  in,  the  extension  over 
the  country  of  federal  authority  in  every  department,  military, 
financial,  postal  and  judicial. 

Had  the  people  of  the  Southern  States  been  obstinate,  and  refused 
to  organize  their  State  governments,  and  resume  their  Federal 
relations,  some  legislation  might  have  become  necessary,  or  had 
the  Congress  been  in  session,  it  might,  or  might  not  have  prescrib- 
ed some  additional  or  different  rules,  for  consumating  the  pacifi- 
cation, and  restoring  the  Federal  relations  of  the  States.  But  the 
fact  that  the  President  accomplished  it,  without  the  necessity  of 
any  additional  law  to  aid  or  guide  him,  makes  it  equally  binding 
on  all  the  departments  of  the  government,  as  though  each  had 
participated  in  it. 

Texas,  having  in  good  faith  performed  everything  required  of 
her,  in  the  pacification,  and  resumption  of  federal  relations,  awaits 
the  result  with  patient  solicitude.  If  the  war  was  not  really  waged 
in  the  "spirit  of  oppression  and  for  the  purpose  of  conquest  and 
subjugation"  she  may  well  hope  that  she  has  done  enough  to  entitle 
her  to  the  "dignity,  equality,  and  rights"  of  a  State  within  the 
Union. 

This  new  project  ignores  or  disregards  all  these  considerations, 
and  seeks  to  make  the  government  now,  nearly  two  years  after  the 
cessation  of  hostilities,  and  after  the   pacification   has    been    long 


OUR   FEDERAL    RELATIONS.  pX 

completed,  and  the  Federal  relatioHS  all  resumed,  except  rep- 
resentation in  Congress,  adopt  a  new  policy  by  treating  us  as  a 
subjugated  people,  without  laws,  without  government,  without  State 
boundaries,  without  public  property  of  any  kind,  without  social 
organization,  with  our  lives  and  property  at  the  will  of  the  con- 
queror. 

It  is  believed,  and  respectfully  submitted  that  such  a  thing  is 
impossible  without  a  perversion  of  facts  as  notorious  as  the  war 
itself,  without  a  breach  of  faith  to  the  brave  soldiers,  who  conquer- 
ed us  to  preserve  the  Union  of  the  States,  without  a  breach  of  faith 
to  the  nations  of  Europe,  who  were  assured  that  the  objects  of  the 
war  wasonly  to  preserve  the  Union,  and  who  under  such  assurance 
saw  us  overwhelmed,  and,  should  it  be  regarded  as  a  matter  of  any 
importance,  without  a  breach  of  faith  to  the  Southern  people,  who 
surrendered  their  arms,  and  the  principle  at  issue  in  the  war,  and 
complied  with  what  was  necessary  to  secure  peace  and  restore  their 
political  relations,  with  a  full  knowledge  of  and  in  reference  to  the 
avowed  and  notorious  objects  of  the  war  on  the  part  of  the  United 
States.  Should  the  government  of  the  United  States  change  its 
whole  policy  on  that  subject,  regarding  the  war  as  still  progressing, 
as  it  must  do,  and  demand,  either  in  express  terms  or  in  effect,  of 
the  people  of  Texas  such  a  surrender, — the  most  abject  known  to 
war, — "a  capitulation  at  will,"  Texas  may  and  doubtless  will  have 
to  submit  to  it.  But  it  should  be  known  and  declared  to  the  world 
to  be  a  new  surrender,  that  will  cancel  in  conscience  all  of  the 
obligations  assured  in  the  one  she  has  hitherto  made.  Before 
breaking  asunder  such  ties  and  plunging  the  whole  cointry  into 
such  confusion,  distrust  and  dissatisfaction,  as  we  fear  must  ensue, 
let  us  most  respectfully  beg  a  patient  and  dispassionate  examination 
of  the  whole  subject  in  all  of  its  bearings  and  consequences.  The 
Constitution  should  be  again  unrolled,  and  clear  and  defindite  ideas 
fully  grasped  upon  the  momentous  questions  now  pending.  The 
proposition  presupposes  that  Texas  is  dead,  politically  defunct  ! 
Texas  was  carved  out  of  the  dominion  of  Mexico  by  the  swords  of 
the  patriots  of '36,  who  gave  it  shape  and  form,  and  breathed  into 
into  it  the  breath  of  life,  and  it  became  an  organized  body,  and  an 
independent  political  society.  Annexation  did  not  destroy  its 
corporate  existence  an  hour  or  a  day.  A  temporary  suspension  of 
her  officers,  and  a  substitution  of  others  by  the  Provisional  govern- 
ment, with  the  same  powers  and  duties  as  those  displaced,  and 
whose  acts  were  afterwards  recognized  by  the  convention,  could 
not  destroy  its  corporate  existence.  Under  the  strongest  theory  of 
the  federal  government,  as  expounded  by  such  jurists  as  Story  and 
Webster,  it  has  always  been  admitted,  that  a  State  on  entering  the 
Union,  retained  a  portion  of  its  sovereiginty  for  the  regulation  of 
its  own  local  and  domestic  concerns,  upon  which  its  State  govern- 
ment is  founded. 


92  OUR    FEDERAL    RELATIONS, 

Those  powers  of  the  of  the  State  of  Texas,  thus  reserved,  were 
not  in  any  way  affected  by  loss  or  gain  during  or  at  the  end  of  the 
war,  because  the  controversy  was  not  about  them,  but  about  the 
powers  that  had  been  delegated  to  the  United  States  on  anexation, 
and  as  to  whether  they  could,  or  should  be  withdrawn,  and  vested 
in  another  confederacy  for  their  exercise. 

So  equally  on  the  doctrine  that  a  State  could  secede  rightfully 
or  wrongfully,  the  State  government  still  existed,  at  the  close  of  the 
war, — though  a  different  mode  of  r£adjustment  of  federal  relations 
might  have  been  necessary. 

Again,  the  use  of  the  State  government  in  hostility  to  the  gen- 
eral government  does  not  of  itself  destroy  the  State  government 
any  more  when  it  fails  than  when  it  succeeds.  The  existence  of  a 
government  is  a  matter  of  fact,  and  not  of  legal  fiction.  Nothing 
but  the  conquest  and  siihjugatioji,  evidenced  in  some  way,  as  being 
intended  and  declared  by  the  United  States,  and  submitted  to  by 
I'exas,  could  annihilate  the  State.  That  can  hardly  be  assumed  to 
be  the  case.  If  Texas  may  now  be  demolished  as  a  State,  the 
precedent  is  set,  and  the  principle  is  established  that  the  general 
government  may,  for  such  acts  as  the  Congress  may  deem  sufficient 
to  have  forfeited  its  political  existence,  set  aside  a  State  govern- 
ment, and  reduce  it  to  a  territory. 

The  danger  of  such  a  principle  to  republican  freedom  is  above 
description,  and  words  will  fail  to  express  the  dismay,  horror,  and 
reckless  despair  of  the  people  of  Texas,  if  they  should  have  the 
misfortune  to  live  to  see  the  power  of  the  United  States  used  in 
pulling  down  the  venerated  pillars,  and  in  digging  up  the  deeply 
settled  foundations  of  their  State  government,  endeared  to  them  by 
its  own  beauty  and  merits,  and  enshrined  in  their  hearts  by  a  histo- 
ry, and  a  name,  of  which  her  sons,  whether  in  freedom  or  in  bond- 
age, will  ever  be  proud. 

As  to  the  disfranchisement  and  disqualification  of  "rebels"  in 
Texas  in  this  scheme,  it  is  only  necessary  to  bring  to  mind  the  uni- 
versal truth,  that  love  begets  love,  kindness  begets  kindness,  gen- 
erosity begets  gratitude,  and  it  cannot  be  pretended  as  yet,  thaj 
the  people  of  Texas  have  advanced  high  enough  in  the  sliding 
scale  of  Christian  civilization  as  to  be  above  the  murky  atmosphere 
of  hate.  Too  many  of  us  will  fail  to  love  those  who  may  despite- 
fully  use  us.  It  is  the  part  of  wisdom  to  act  upon  the  fact,  that  this 
is  no  mere  insurrection  or  petty  rebellion  of  a  district,  that  was 
contemplated  in  the  Constitution  to  be  punished  by  prosecutions 
as  therein  prescribed.  That  is  found  impracticable,  because  it 
was  a  great  civil  war  of  sections,  embracing  whole  States,  and  the 
stamina,  intellectual  and  physical,  of  the  great  body  of  the  people 
in  each  of  these  States. 

Why  is  it  that  the  Irish  will  not  adopt  English  civilization,  and 
pride  of  country?  Because  they  hate  England  for  its  traditional  op- 


OUR    FEDERAL    RELATIONS.  93 

pression  of  Ireland.  Surely  that  lesson  ought  to  be  known  with-' 
out  learning  it  by  bitter  experience  in  America.  The  way  is  still 
open  to  keep  us  one  people,  rising  out  of  this  life  and  death  strug- 
gle, with  common  motives  and  aspirations  for  the  prosperity  and  the 
glory  of  the  common  country,  and  not  bound  by  the  fetters  of  cold 
iron. 

Christian  charity  and  liberal  statesmanship  point  the  way.  We 
most  earnestly  desire  their  exercise  toward  our  people. 

They  are  in  a  tone  of  mind  now  to  appreciate  the  necessity  of 
progress,  so  as  to  keep  pace  with  the  safe  advances  of  the  age,  in 
intellectual,  social,  material,  and  political  development.  Their 
faces  are  already  turned  in  that  direction  with  the  hope  that  a  pow- 
erful and  magnanimous  government  will  neither  thrust  them  back 
with  its  frowns  and  blows,  nor  drive  them  along  with  a  blinding 
rapidity. 

Texas,  having  done  what  she  deemed  to  have  been  her  duty,  and 
still  being  willing  to  do  it,  leaves  the  responsibility  of  the  future 
upon  those  who  have  the  power  to  shape  the  destinies  of  the 
country. 

Washington,  January  ist,  1867.  O.  M.  Roberts, 

D.  G.  Burnett, 
Senators-elect  from  Texas. 
B.  H.  Epperson, 
Representative  of  2d  District. 

A.  M.  Branch, 
Representative  of  3d  District. 

Geo.  W.  Chilton, 
Representative  of  ist  District. 

Note. — This  address  was  highly  appreciated  by  the  President 
and  members  of  the  Cabinet,  and  received  the  general  commenda- 
tion of  the  Southern  press,  including  that  of  Texas,  but  it  had  no 
influence  upon  the  Congress  of  the  United  States. 


94'  OUR   FEDERAL    RELATIONS. 


A  P0BLIC  LECTURE  IN  THE  UNIVERSITY. 


THE  HISTORY,  OBJECT  AND  EFFECT  OF  THE  RECONSTRUCTION  OF  THE 
ELEVEN  SOUTHERN  STATES  BY  THE  CONGRESS  OF  THE  UNITED 
STATES — A  REVOLUTION  IN  A  TIME  OF  PEACE. 


History  is  a  recorded  account  of  what  the  people  are  doing  in  a 
country  during  any  given  period.  What  they  are  then  doing,  is 
dependent  upon  the  rules  of  action,  prescribed  or  tacitly  permitted 
by  the  government.  This  does  not  include  a  time  of  yvar;  for 
wars  have  their  own  history,  which  is  much  the  same  in  all  ages. 
Great  national  wars  are  stops  in  history,  when  the  rules  of  action 
in  one  period  cease  to  prevail,  and  others  commence  to  be  en- 
forced. The  war  may  come  to  an  end  without  completing  the 
revolution  for  which  the  war  was  commenced  and  carried  on.  In 
that  event  the  revolution  in  the  rules  of  action  must  be  completed 
afterwards,  by  the  political  action  of  the  government.  Such  was 
the  result  of  the  great  war  between  the  American  States. 

The  object  of  this  discourse  is  to  show  how  the  revolution  was 
sought  to  be  completed  by  the  Congressional  reconstruction  of  the 
eleven  Southern  States,  inaugurated  in  March,  1867,  nearly  two 
years  after  the  close  of  the  war. 

President  Johnson's  plan  of  reconstruction,  which  had  been  pre- 
viously carried  out,  except  only  by  the  exclusion  of  the  Southern 
members  of  Congress,  was  based  upon  the  views  of  the  nature  of 
the  government  of  the  United  States,  and  of  its  relation  to  the 
States,  that  had  long  been  entertained  by  some  eminent  statesmen, 
which  involved  the  idea  of  a  divided  sovereignty  between  the  gen- 
eral government  and  that  of  the  several  States  ;  each  resting  di- 
rectly upon  the  sovereignty  of  the  people;  the  general  government 
upon  that  of  the  whole  of  the  people  of  all  the  States,  and  the 
government  of  each  State  upon  that  of  the  people  of  each  State, 
constituting  together  as  a  whole,  a  compositive  government,  and 
forming  an  indissoluble  union  of  all,  and,  at  the  same  time  recog- 
nizing sovereign  reserved  powers  of  the  States,  bound  together 
alone  by  the  Constitution  of  the  United  States.  It  was  exactly 
under  this  view  of  the  system  of  government,  that  President  Buch- 
anan contended  (while  the  secession  of  the  Southern  States  was 
taking  place),  that  a  State  had  no  right  to  secede,  but  that  the  Con- 


OUR    FEDERAL    RELATIONS.  95 

stitution  of  the  United  States  did  not  invest  the  federal  govern- 
ment with  the  power  to  forcibly  coerce  a  State,  and  make  it  pre- 
serve its  federal  relations,  when  that  State,  acting  by  its  constituted 
authorities,  had  voluntarily  withdrawn  them.  Others,  however, 
entertaining  the  same  general  view  of  the  nature  of  the  govern- 
ment, thought  that  the  Constitution  did  confer  upon  the  general 
government  the  power  to  coerce  the  people  of  a  State  by  force, 
however  unanimous  their  action  might  be  in  sustaining  the  State 
authorities  in  the  effort  to  withdraw  their  federal  relations.  They 
regarded  the  action  of  any  convention  or  legislature,  directed  to 
that  end,  as  simply  void,  leaving  the  Constitution  and  laws  of  the 
United  States  still  locally  in  force,  as  though  no  such  action  had 
been  taken,  and  regarding  those  persons  who  might  act  by  the 
pretended  authority  of  such  convention  or  legislature,  in  prevent- 
ing the  laws  of  the  United  States  from  being  enforced  in  such 
States,  as  criminal  offenders,  and  liable  to  punishment  according 
to  the  grade  of  their  offenses.  Those  persons  in  such  State,  who 
might  not  aid  or  take  part  in  such  conduct,  would  still  be  under  the 
protection  of  the  Constitution  and  laws  of  the  United  States,  enti- 
tled to  their  full  rights  under  them,  as  citizens  of  the  United  States, 
and  of  course  not  liable  to  any  punishment,  or  forfeiture  of  rights 
or  privileges. 

All  that  could  be  necessary  in  such  a   case  was  to   over-awe  or 
take  forcible  possesion  of  the  insurgents,  bringing  them  to  trial  for 
their  breaches  of  the  criminal  laws  of  the  land,  because  the  laws  of 
the  United  States  are  to  be  respected  and  obeyed,  and  thereby  pre- 
serve the  Union.     It  was  in  this  way  that  some   statesmen  before 
the  war  believed  the  general  government  had  the  power  under  the 
Constitution  to  preserve  the  Union.     It  was  under  this  view,  that 
Mr.  Lincoln,  when   he  became   president,  undertook   to   preserve 
the  Union.     It  was  under  this  view  avowedly,  that  Congress  voted 
men  and  money  to  suppress  the  so-called  rebellion.     It  was  under 
this  view,  that  a  desultory  war  with  fire  and  sword,  and  the  freedom 
of  the  insurgent's  slaves,  were  vindicated  before  the  civilized  world. 
It  was  under  this  view  alone,  that  it  could  be  said,  that  the  insur- 
gents were  endeavoring  to  destroy  the  government  of  the  United 
States.     It  was  under  this  view,  that  President  Lincoln,  under  an 
act  of  Congress,  offered  amnesty  and  pardon  to  those  who  would 
cease  their  hostility.     It  was  under   this   view,  that   thousands   of 
Southern  men  would  take  no  part  in  the  war,  that  they  could  avoid. 
It  was  under  this  view,  that  the  Southern  armies  surrendered,  and 
their  officers  and  soldiers  were  paroled.       It  was  under  this   view, 
that   President  Johnson  issued  his  proclamation  of  amnesty  and 
pardon,  freeing  the  mass  of  those  who  were  engaged  in  the  war  on 
the  part  of  the  South,  from  punishment  and  forfeiture  for  their  al- 
leged treasonable  acts,  upon  such  a  condition  as  would  secure  the 
repudiation  of  the  right  of  secession,  and  of  the  rehnciuishment  of 


g6  OUR    FEDERAL    RELATIONS. 

slavery  on  the  part  of  the  Southern  States,  in  the  readjustment  of 
their  federal  relations,  withholding  a  pardon  from  the  leaders  and 
some  others,  except  upon  special  applications,  some  of  whom,  un- 
der the  same  view,  were  actually  prosecuted  for  treason,  and  others 
had  their  property  confiscated. 

In  such  a  struggle  as  America  witnessed  during  four  years, — 
the  first  truly  American  war, — bearing  a  proportion  to  its  grand 
rivers  and  lakes,  its  great  plains  and  mountain  ranges,  and  its  vast 
outspread  continent,  embracing  numerous  States,  teeming  with 
population,  wealth  and  resources,  and  closing  with  one  million  of 
federal  soldiers  in  the  field  to  arrest  the  insurgents,  it  would  have 
been  astonishing,  indeed,  if  the  old  ideas  of  government  had  not 
been  much  expanded,  and  new  ideas  wrought  out  that  had  never 
before  been  acted  on,  if  even  conceived  by  statesmen.  Such  was 
the  case,  and  we  must  have  some  information  of  them  before  we 
can  properly  understand  the  congressional  plan  of  reconstruction, 
and  the  reasons  of  it. 

The  great  new  idea,  soon  matured  and  put  into  activity  by  the 
war  in  the  North,  was  that  the  whole  of  the  people,  in  mass,  of 
the  United  States,  as  a  body  corporate,  had  a  living  organized 
existence,  founded  upon  a  unity  of  race,  styled  the  "life  of  the 
nation,"  which  was  a  principle  of  cement  and  union  binding  the 
whole  people  together,  underlying  the  Constitution,  and  above  all 
constitutions.  The  general  government,  aided  by  the  Northern 
States,  acting  through  their  governors  and  legislatures,  and  active- 
ly sanctioned  by  the  pulpit,  and  the  press,  assumed  the  high  duty 
of  preserving  the  "life  of  the  nation,"and  everything  they  did,  and 
all  the  means  that  they  used  to  accomplish  that  end,  were  sancti- 
fied thereby.  All  those  citizens,  who  opposed  the  war  injthe  North 
were  held  up  to  infamy  as  its  enemies.  Some  of  them  were  im- 
prisoned, and  others  banished,  and  opposing  presses  were  silenced. 
Its  first  great  conquest  was  in  cenquering  Northern  opposition, 
and  arousing  and  concentrating  public  opinion  to  the  high  resolve 
of  sinking  the  whole  country  in  ruins,  if  necessary,  in  the  effort  to 
preserve  "the  life  of  the  nation."  The  first  conquest  being  made 
at  home,  the  rest  was  more  easy.  Bounties  by  the  general  govern- 
ment, by  the  States,  by  the  counties,  by  cities,  and  by  towns 
(amounting  in  the  aggregate,  in  some  places,  to  eleven  hundred 
dollars),  were  given  to  buy  up  soldiers  to  fight  the  battles  for 
the  preservation  of  "the  life  of  the  nation."  To  sustain  the 
currency,  the  treasury  notes  of  the  United  States  were  made  a 
legal  tender,  the  same  as  gold  and  silver.  Bounties  were  given 
to  internal  improvements  on  a  grand  scale.  The  expenditure  of 
a  million  of  dollars  per  day  was  not  regarded  as  extravagance. 
Tariffs  were  raised  to  a  height  never  before  known  (averaging 
perhaps  as  much  as  60  per  cent  upon  the  original  cost  of  the 
imported  article).     An  internal  revenue  tax  was  levied  upon  most 


OUR    FEDERAL    RELATIONS.  97 

of  the  products  of  the  country.  Three  billions  of  public  debt 
were  incurred.  When  the  war  closed  the  government  was  found 
in  the  hands  and  under  the  influence  of  those,  for  the  most  part, 
who  were  not  interested  to  diminish  the  enormous  expenditure, 
but  rather  to  find  the  means,  as  they  did,  of  merely  diverting  it  to 
other  purposes. 

This  will  suffice  to  convey  a  slight  view  of  the  expansion  of  the 
views  of  the  statesmen,  who  were  participating  in  the  government 
of  the  country,  when  the  collapse  of  the  Confederate  government 
took  place,  which  caused  them  to  mount  still  higher  for  a  still 
broader  view  of  their  duty,  in  giving  direction  to  the  great  events 
of  the  country.  They  had  not  provided  for  that  event  any  plan  in 
accordance  with  their  expanded  views,  and  therefore  none  could 
readily  be  agreed  upon.  One  by  one  they  began,  though  slowly, 
to  ascend  to  a  higher  point  of  political  observation,  drawing  each 
other  up  all  the  time,  until  finally  they  beheld  dawning  upon  them 
the  vision  (dreamed  of  only  before)  of  the  great  consolidated  re- 
public based  upon  universal  political  equality,  without  distinction 
of  race  or  color, — the  self-protective,  self-developing  empire  of 
America,  with  a  central  controlling  head.  With  such  a  vision  in 
prospect,  the  plan  promptly  inaugurated  by  President  Johnson, 
during  their  period  of  hesitancy,  seemed  to  them  be  be  a  lame  ex- 
pedient; that  was  halting,  by  traveling  backwards  upon  the  old- 
fashioned  contracted  ideas,  with  which  they  had  set  out  in  the  war 
themselves,  but  not  at  all  in  harmony  with  the  magnificent  concep- 
tions of  the  new  era  of  progress  that  had  dawned  upon  the  coun- 
try. 

The  leaders  in  Congress  very  soon  perceived  that  they  had  an- 
other war  to  flght, — this  time  a  political  wir.     As  before,  the  first 
great  conquest  must  be  made  at  home;  for  the  public  opinion  of 
the  North,  and  much  less  that  of  their  coadjutors,  the  "Southern 
loyalists,"  had  not  reached  this  grand  conception,  and  had  to  be 
drawn  up  to  it  by  agitation.     Much  still  had  to  be  done.    This  re- 
quired both  delay  and  agitation.     Delay  was  soon  attained  by  ar- 
raying Congress  against  the  President,  and  keeping  the  Southern 
members  out  of  Congress.     Agitation  was  kept  up  by  a  paper  war 
upon  the  South  for  years,  after  it  had  grounded  its  arms  and  sought 
peace.     We  were  represented  still   to   be  in  a  state  of  semi-rebel- 
lion; and  their  coadjutors  in   the  South,  taking  their  cue,  helped 
them  with  reports  of  murders  and  seditious  outrages,  that  enabled 
them  to  keep   up   the  delusion   upon  the   Northern  mind,  that  we 
were  actualy,  in  sentiment  at  least,  in  a  semi-state  of  rebellion,  and 
were  not  to  be  trusted   with  any  participation  in  the  government, 
and  that  there  were  no   loyal  people  in   the  South,  except  the  ne- 
groes and  the  few  white  loyalists.     Such  the  Northern  people  were 
made  to  understand  and  believe  was  our  true  condition. 

This  was  necessary  to  excuse  or  justify  the  extraordinary  meas- 


pS  OUR    FEDERAL    RELATIONS. 

ures  necessary  to  accomplish  the  object,  sought  to  be  attained. 
That  object  was  the  absolute  sovereignty  of  the  government  of  the 
United  States,  with  the  powers  of  the  States  subordinated  to  its  ac- 
tion, and  subjected  to  its  supervising  control,  to  a  degree  never 
before  provided  for,  or  exercised.  To  attain  this  object,  it  was 
necessary  to  establish  a  universal  citizenship  and  consequent  al- 
legiance to  the  government  of  the  United  States,  to  free  the  negroes 
and  secure  them  in  equality  of  rights,  and  to  place  the  general  gov- 
ernment in  more  complete  supremacy  over  the  States,  so  as  to  en- 
able it  to  protect  its  citizens  and  others  from  any  action  of  the 
States,  that  it  might  deem  to  be  violative  of  their  rights.  This  re- 
quired such  amendments  of  the  Constitution  of  the  United  States 
as  would  negative  the  doctrine,  previously  held  in  the  Northern 
States,  of  a  divided  sovereignty  between  the  States  and  the  United 
States,  as  well  as  that  of  State  sovereignty,  as  held  by  the  States  in 
the  South. 

The  amendment  of  the  Constitution  in  December,  1865,  prohib- 
iting slavery  in  the  United  States,  and  the  protection  of  negroes  by 
troops  stationed  in  the  Southern  States,  left  the  negroes  still  with- 
out the  right  of  suffrage.  The  Supreme  Court  of  the  United  States 
had  previously  decided,  in  the  Dred  Scott  case,  that  negroes  were 
not,  and  could  not  be  made  citizens  of  the  United  States.  That 
impediment  to  universal  suffrage  must  be  gotten  rid  of.  In  the 
summer  of  1866,  after  all  of  the  Southern  States  had  reorganized 
under  the  plan  of  President  Johnson,  a  convention,  composed  of 
his  political  adherents,  was  held  in  Philadelphia,  then  styled  "the 
conservative  convention,"  in  which  resolutions  were  passed  approv- 
ing his  plan  of  reconstruction,  and  announcing  the  view,  that  if 
Congress  excluded  the  members-elect  from  the  eleven  Southern 
States,  it  would  not  be  a  constitutional  body. 

The  resolutions  were  presented  to  President  Johnson  by  a  com- 
mittee, headed  by  Reverdy  Johnson,  Senator  from  Maryland,  and 
it  was  understood  that  they  reflected  the  views  of  the  President. 
At  once  a  movement  was  set  on  foot  for  the  organization  of  an 
army  all  over  the  Northern  States,  styled  "the  army  of  the  Repub- 
lic," to  be  in  readiness,  if  necessary,  to  sustain  the  Congress  as 
against  the  President  and  his  political  adherents.  This  greatly 
aided  in  arousing  public  sentiment  in  the  North  in  favor  of  the 
Congress,  and  when  it  met  in  December,  1866,  it  was  given  a  for- 
mal reception  at  the  capitol  by  a  great  multitude  of  people,  with 
congratulatory  speeches,  and  the  display  of  flags,  and  other  demon- 
strations of  rejoicing,  more  like  the  return  of  a  victorious  army 
than  the  convening  of  a  legislative  body.  It  was  then  currently 
estimated,  that  Congress  was  backed  by  a  millon  of  troops,  organ- 
ized in  the  "Army  of  the  Republic." 

The  Congress,  then  confident  of  its  absolute  power,  poceeded  to 
remove  the  impediments  in  its  way  of  accomplishing  its   objects. 


OUR    FEDERAL   RELATIONS.  99 

President  Johnson  was  impeached,  and  tried  for  high  crimes  and 
misdemeanors;  and  although  the  impeachment  failed,  he  was  ren- 
dered powerless.  In  order  that  his  plan  of  reconstruction  might 
be  set  aside,  an  act  of  Congress  was  passed  (over  the  President's 
veto),  on  March  2,  1S67,  entitled,  an  act  to  provide  for  the  more 
efflcient[governmentof  the  rebel  States,  with  a  preamble  as  follows: 
"Whereas,  no  legal  State  governments,  or  adequate  protection  for 
life  or  property  now  exists  in  the  rebel  States  of  Virginia,  North 
Carolina,  South  Carolina,  Georgia,  Mississippi,  Alabama,  Louis- 
iana, Florida,  Texas,  and  Arkansas;  and,  whereas,  it  is  neces- 
sary that  peace  and  good  order  should  be  enforced  in  said  States, 
until  loyal  and  republican  State  governments  can  be  legally  estab- 
lished; therefore, 

"Be  it  enacted,  etc.,  that  said  rebel  States  shall  be  divided  into 
military  districts,  and  made  subject  to  the  military  authority  of 
the  United  States,  as  hereinafter  prescribed,"  etc. 

There  were  five  military  districts,  one  of  which  was  composed 
of  Louisiana  and  Texas,  over  which  a  general  of  the  array  was  ap- 
pointed, and  assigned  to  duty,  with  a  competent  military  force  to 
sustain  him  in  the  discharge  of  his  duties.  It  was  made  his  duty 
to  protect  the  rights  of  persons  and  property,  suppress  insurrec- 
tion, disorder,  and  violence,  and  to  punish,  or  cause  to  be  punish- 
ed, all  disturbers  of  the  public  peace  and  criminals,  'and  (it  was 
provided)  to  this  end,  he  may  allow  all  local  civil  tribunals  to  take 
jurisdiction  of  and  try  offenders;  or  when,  in  his  judgment,  it  may 
be  necessary  for  the  trial  of  offenders,  he  shall  have  the  power  to 
organize  military  commissions  or  tribunals  for  that  purpose,"  etc. 

It  was  further  provided,  that  until  the  people  of  the  rebel  States 
shall  be  by  law  permitted  representation  in  Congress,  "any  civil 
governments  which  may  exist  therein  shall  be  deemed  provisional 
only,  and  in  all  respects  subject  to  the  paramount  authority  of  the 
United  States,"  etc.  And  further:  "No  person  shall  be  eligible  to 
any  office,  under  any  such  provisional  government,  who  would  be 
disqualified  from  holding  office,  under  the  provisions  of  the  third 
article  of  said  Constitutional  amendment."  The  amendment  re- 
ferred to  was  the  fourteenth,  that  had  already  been  introduced  in 
Congress,  and  which  in  its  third  article  "prohibited  any  person 
from  holding  office,  who  had  (personally)  held  an  office  in  which 
he  was  required  to  take  an  oath  to  support  the  Constitution  of  the 
United  States,  and  shall  have  engaged  in  insurrection  and  rebel- 
lion against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof." 

By  a  supplementary  act  of  the  19th  of  July,  1S67,  the  command- 
ers of  districts  were  authorized,  at  their  discretion,  to  remove  all 
civil  officers  in  the  provisional  governments,  and  to  appoint  others 
to  fill  their  places,  and  the  removals  and  appointments  of  such 
officers,  that  had  been  previously  made,  were  confirmed. 


lOO  OUR   FEDERAL    RELATIONS. 

By  thus  reducing  the  Southern  States  to  military  dependencies, 
with  no  representation  in  Congress,  it  would  become  easy  to  have 
the  fourteenth  amendment  adopted  by  the  Northern  States,  in  the 
absence  of  the  Southern  States  voting  against  it,  which  they  would 
have  done  and  defeated  its  adoption,  if  they  had  been  allowed  to 
vote  on  it. 

The  fourteenth  amendment,  though  it  was  introduced  in  Con- 
gress as  a  part  of  the  plan  of  reconstruction,  before  the  passage  of 
the  law  reducing  the  Southern  States  to  the  condition  of  territories 
(in  which  it  is  referred  to  as  a  proposed  amendment),  was  finally 
recognized  as  part  of  the  Constitution  on  the  26th  of  July,  1868. 
Sections  i  and  5  of  said  amendment  are  as  follows: 

Art.  14,  Sec.  i.  "All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States,  and  of  the  State  wherein  they  reside.  No  State 
shall  make  or  enforce  any  law,  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States,  nor  shall  any  State 
deprive  any  person  of  life,  liberty,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws." 

Sec.  5.  "The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article." 

The  first  sentence  is  intended  to  establish  United  States  citi- 
zenship with  personal  allegiance  to  its  government;  the  second  to 
protect  its  citizens  in  their  privileges  and  immunities  from  abridg- 
ment by  any  law  of  a  State;  the  third,  to  place  the  legislative  and 
judicial  actions  of  the  States,  performed  under  their  own  constitu- 
tions and  laws,  subject  to  the  supervising  control  of  the  general 
government.  Section  5  changes  the  rule,  originally  prescribed  in 
article  i,  section  8,  clause  19  of  the  Canstitution,  for  the  exercise 
of  implied  powers,  from  such  as  were  "necessary  and  proper"  to 
stch  as  are  "appropriate," — thereby  leaving  it  in  the  discretion  of 
Congress  to  pass  such  laws  as  may  be  deemed  appropriate, 
whether  "necessary"  or  not  for  the  enforcement  of  the  14th 
amendment. 

This  amendment  was  designed,  doubtless  upon  full  premedita- 
tion, to  place  the  government  of  the  United  States  in  the  position 
of  the  one  great  consolidated  American  republic,  with  subordinate 
and  auxiliary  States,  for  such  local  administration  as,  from  time  to 
time,  it  was  not  deemed  expedient  to  be  assumed  by  the  superior 
government;  provided,  however,  such  local  administration  shall 
not  abridge  the  privileges  or  immunities  of  the  citizens  of  the 
United  States,  and  shall  not  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law,  nor  deny  to  any  person  with- 
in its  jurisdiction  the  equal  protection  of  the  laws, — the  superior 
government  assuming  the  incidental  power  to  determine  what  ac- 


OUR    FEDERAL    RELATIONS.  lOI 

tion  of  the  State  authorities  would  constitute  such  deprivation  and 
denial. 

This  14th  amendment,  together  with  the  13th,  of  December  18, 
1865,  freeing  the  negroes,  and  the  15th,  of  March  30,  1S70,  con- 
ferring the  right  to  vote  upon  the  negroes  equally  with  the  whites, 
were  designed  to  effect  a  complete  revolution  in  the  fundamental 
structure  of  our  system  of  federal  and  State  governments. 

Under  the  Constitution,  as  it  was  originally  adopted,  a  person 
was  a  citizen  of  the  United  States,  only  by  being  a  citizen  of  a 
State.  There  was  such  a  thing  as  an  interstate  citizenship,  by  the 
provision  "that  the  citizens  of  each  State  shall  be  entitled  to 
all  privileges  and  immunities  of  citizens  in  the  several  States." 
This  was  in  effect  a  mere  treaty  stipulation  as  between  the  States, 
inserted  in  the  Constitution.  The  Congress  was  given  the  power 
"to  establish  a  uniform  rule  of  naturalization  .  .  .  throughout 
the  United  States."'  By  this,  foreigners  would  become  citizens  of 
any  of  the  States,  in  the  same  manner  and  on  the  same  terms  as 
natives.  There  was  no  clause  in  the  Constitution,  defining 
citizenship  of  the  United  States.  Hence  many  officers  in  the 
service  of  the  United  States,  upon  the  breaking  out  of  the  war 
between  the  States,  regarded  their  primary  allegiance  due  to  their 
own  States  ;  and  on  the  same  principle,  many  Southern  men,  who 
were  opposed  to  secession,  felt  in  conscience  bound  to  support  the 
action  of  their  States.  President  Davis,  at  the  close  of  the  war, 
was  indicted  for  treason  to  the  United  States.  To  make  the 
prosecution  successful  in  a  court  of  law,  it  was  neccessary  to 
establish  his  allegiance  to  the  government  of  the  United  States,  by 
some  provision  in  the  Constitution,  under  which,  his  acts  in  defense 
of  his  State  could  be  made  treasonable.  After  a  long  confinement 
the  prosecution  was  dismissed  by  the  federal  court,  over  which 
Chief  Justice  Chase  of  the  Supreme  Court  presided.  It  can  hard- 
ly be  presumed  that  it  was  done  from  any  personal  favor  to  him, 
or  from  a  want  of  a  desire  to  make  an  example  by  his  conviction, 
if  it  had  been  thought  to  be  certainly  practicable.  The  trial  by  a 
jury  in  a  court  of  law  might  have  reversed  the  judgment,  rendered 
in  "the  trial  by  battle."  It  was  evidently  thought  by  those  in 
authority,  that  it  was  better  not  to  risk  it.  This  first  section  of  the 
fourteenth  amendment  was  most  artfully  devised  to  effect  a  radical 
change  of  citizen  allegiance,  from  this  State  to  the  government  of 
the  United  States,  and  to  merge  the  sovereignty  of  all  the  States 
into  absolute  sovereignty  of  the  government  of  the  United  States. 
This  was  a  new  concjuest  over  the  people  in  the  South,  while  they 
were  held  in  duress,  three  years  after  they  had  laid  down  their 
arms  and  sought  peace, — the  subjugation  of  a  powerless  people  as 
upon  a  surrender  and  capitulation  at  will,  that  never  was  made  by 
their  armies  in  the  field,  and  which  never  was,  and  would  not  have 
been  imposed  by  the  brave  soldiers,  who  fought  their    battles,    and 


I02  OUR  FEDERAL  RELATIONS. 

overpowered  the  South.  It  is  even  more  than  that;  for  it  secures 
the  centralization  of  power  in  the  general  government,  that  may 
ultimately  destroy  the  reserved  rights  and  liberties  of  the  people 
both  North  and  South.  These  extraordinary  measures  were  claim- 
ed to  have  been  adopted  under  that  clause  of  the  Constitution 
which  says:  "The  United  States  shall  guarantee  to  every  State  in 
this  Union  a  republican  form  of  government."  So  at  least  it  was 
held  in  the  Supreme  Court  of  the  United  States^  in  the  case  of  the 
State  of  Texas  vs.  White  and  Chiles,  decided  in  April,  1869,  in 
which  it  was  said,  "The  power  exercised  by  President  Johnson 
was,  supposed,  doubtless  to  be  derived  from  his  constitutional 
functions  as  commander  in  chief." — "But  the  power  to  carry  into 
effect  the  clause  of  guaranty  is  primarily  a  legislative  power  and 
resides  in  Congress."  Notwithstanding  this  assumption,  the  theory 
upon  which  the  war  was  carried  on  by  the  Northern  States  was, 
.that  it  was  only  necessary  to  suppress  the  opposing  forces  of  the 
Southern  States  to  preserve  the  Union,  and  that  those  States  were 
still  in  the  Union,  as  soon  as  they  might  peacefully  resume  their 
Federal  relations,  to  the  United  States.  In  the  case  referred  to,  it 
was  decided  that  the  State  of  Texas  was  a  State  within  the  Union, 
competent  to  bring  a  suit  in  the  Supreme  Court  of  the  United  States, 
as  a  State,  against  White  and  Chiles  on  the  15th  of  February,  1867, 
when  Governor  Throckmorton  was  Governor  of  the  State,  organiz- 
ed under  the  President  Johnson's  reonstruction,  with  all  of  its 
Federal  relations  resumed  and  in  full  operation,  except  only  the 
exclusion  of  its  members  of  Congress,  by  the  action  of  Congress 
alone.  The  government  of  Texas  at  that  time  as  organized  under 
the  amended  Constitution  of  1866,  was  republican  in  form,  by  all 
of  the  tests  that  had  ever  been  applied  to  any  of  the  States,  North 
or  South.  The  fact  that  the  negroes  had  been  declared  free,  by 
the  amendment  of  1865,  and  by  the  Texas  amended  Constitution 
of  1866,  without  giving  them  the  right  to  vote,  was  no  ground  for 
assuming  that  the  State  government  then  was  not  republican  in  form,, 
for  free  negroes  had  been  excluded  from  voting  in  most  if  not  in 
all  of  the  States  pseviously.  The  true  ground  was  not  that  which 
was  alleged  in  the  preamble  of  the  law  of  Congress  of 
March,  1867,  that  "no  legal  State  government  or  adequate  protec- 
tion of  life  or  property  now  exists  in  rebel  State"  (naming 
eleven  of  them  in  the  South).  The  government  of  Texas  was  being 
administered  under  the  Constitution  of  1845,  with  such  amend- 
ments as  were  neccesary  to  adapt  the  State  to  its  changed 
condition  in  the  Union,  passed  by  the  people  through  their 
delegates  in  the  convention  of  1866,  and  approved  by  a  vote  of" 
the  qualified  electors  of  the  State,  in  which  the  previous  claim 
of  the  right  of  secession  was  distinctly  renounced,  and  the  laws, 
both  State  and  federal,    were    being    enforced    under    Governor 


OUR    FEDERAL    RELATIONS.  I03 

Throckmorton's  administration,  as  promptly,  and    efficiently    as 
they  had  ever  been  in  Texas. 

This  renunciation  of  State  sovereignty  by  the  State  was  not  sat- 
isfactory to  the  advanced  ideas  of  those  in  power,  because  it  might 
be  resumed  by  the  same  power  in  the  State  that  renounced  it. 
State  sovereignty  under  which  the  right  of  secession  was  claimed, 
must  be  utterly  destroyed,  so  as  to  put  it  out  of  the  power  of  the 
people  of  the  State  to  reassert  or  claim  it  by  their  own  action. 
Moreover,  it  was  not  loyal  in  its  political  organization,  as  its  offi- 
cers were  not  republicans,  as  its  reconstruction  was  designed  by 
Congress  they  should  be,  which  was  meant  by  the  addition  of  the 
word  "loyal,"  to  the  words  in  the  guarantee  clause  "republican  in 
form,"  as  expressed  in  the  Constitution.  The  officers  in  the 
Throckmorton  administration  were  generally  Democrats  elected  by 
white  voters  alone. 

Those  were  the  leading  reasons  why  it  was  necessary  to  demol- 
ish the  government  in  Texas,  and  those  in  the  other  Southern 
States,  erected  and  in  peaceful  operation  as  reconstructed  by  Pres- 
ident Johnson,  and  to  place  them  under  military  rule  as  subjugat- 
ed territories.  This  fundamental  revolution  in  the  relation  of  the 
States  to  the  government  of  the  United  States  could  not  be  accom- 
plished otherwise  than  by  depriving  the  eleven  Southern  States 
(then  more  than  one-fourth  of  all  the  States),  of  all  participation 
in  the  government.  The  end  sanctified  the  means  in  the  view  of 
Congress.  The  way  was  thus  made  plain  to  adopt  the  fourteenth 
amendment,  that  had  been  introduced  in  Congress  in  June,  1866, 
which,  though  not  adopted  by  the  States  still  in  the  Union,  and 
declared  a  part  of  the  Constitution,  until  July  28,  1868,  was  never- 
theless, while  still  only  a  proposed  amendment,  made  in  force  as 
part  of  the  law  of  reconstruction,  passed  over  the  President's  veto 
on  March  2,  1867. 

The  first  sentence  in  section  i  of  the  fourteenth  amendment  cre- 
ated the  citizenship  to  the  United  States.  A  person  thus  made  a 
citizen  is  thereby  a  unit  in  the  aggregate  mass  of  people,  in  all  of 
the  States,  that  constitute  ihe  sovereignty  on  which  the  govern- 
ment is  based,  and  consequently  he  owes  allegiance  to  that  gov- 
ernment. This  was  supplemented  by  the  first  part  of  the  next  sen- 
tence that  "no  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States."  Though  the  Supreme  Court  has  not  defined  the  extent  to 
which  this  provision  may  be  made  to  control  the  action  of  the 
States,  it  certainly  enables  the  general  government  to  interpose  its 
ower  to  protect  its  citizens  against  the  operation  of  any  State  law, 
that  it  might  deem  an  abridgment  of  their  privileges  and  immuni- 
ties. 

The  balance  of  the  sentence  extends  its  protection,  still  further, 
to  any  person,  whether  a  citizen  or  not,  when  it  shall  deem  that  a 


I04  OUR    FEDERAL    RELATIONS. 

State  is  acting  so  as  to  deprive  him  of  life,  liberty,  or  property, 
without  due  process  of  law,  or  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws.  This  provision,  for  the 
protection  of  life,  liberty,  and  property,  is  contained  in  the  Con- 
stitution of  the  State  of  Texas,  and  its  government  is  bound  by  it, 
both  in  making  and  executing  its  laws.  Still,  its  action,  either  leg- 
islative or  judicial,  would  not  be  final,  but  would  be  subject  to  re- 
vision by  the  Supreme  Court  of  the  United  States,  at  the  descre- 
tion  of  Congress  to  make  it  so. 

The  Constitution  originally  placed  limitations  upon  the  action 
of  the  States,  which  were  enforced  by  the  supervision  of  the  Su- 
preme Court,  such  as  relating  to  emitting  bills  of  credit,  making 
anything  but  gold  and  silver  a  tender  in  payment  of  debts,  passing 
bills  of  attainder,  expost  facto  laws,  or  laws  impairing  the  obliga- 
tions of  contracts;  also  provisions  requiring  that  the  citizens  of 
each  State  shall  be  entitled  to  all  privileges  and  immunities  of  cit- 
izens in  the  several  States,  and  that  full  faith  and  credit  shall  be 
given  in  each  State  to  the  public  acts,  records  and  judical  pro- 
ceedings of  every  other  State,  all  of  which  limitations  have  been 
liberally  extended  by  construction.  No  one  of  them,  or  all  of 
them  together,  are  calculated  to  thrust  the  supervision  of  the  gen- 
eral government  so  thoroughly  into  all  of  the  internal  operations 
of  the  State  government,  as  these  provisions  of  the  first  and  fifth 
sections  of  the  fourteenth  amendment.  To  these  also  may  be 
added  limitations  upon  the  actions  of  the  States  by  the  construc- 
tions placed  upon  the  expressed  and  implied  powers  conferred 
upon  the  Congress  and  other  departments  of  the  government,  such 
as  the  power  to  lay  and  collect  taxes,  duties,  imports  and  excises, 
to  pay  the  debts,  etc.,  to  borrow  money  on  the  credit  of  the  United 
States,  to  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes,  to  establish  postoffices 
and  post  roads;  and  also  the  provision  that  the  Constitution  and 
the  laws  of  the  United  States,  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made  under  the 
authority  of  the  United  States,  sha.\\  be  the  supreme  law  of  the 
land,  and  the  judges  in  every  State  shall  be  bound  thereby  any- 
thing in  the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding. This  clause  was  construed  by  the  Supreme  Court 
to  establish  the  supremacy  of  all  the  measures  adopted  by  the  fed- 
eral government  to  the  extent,  that  all  action  of  a  State  interfering 
with  them  is  void,  although  its  action  might  be  in  accordance 
with  its  own  Constitution. 

Formerly  when  a  question  was  involved  in  any  case  originating 
in  a  State  court,  if  it  was  not  removed  into  the  federal  court  be- 
fore trial,  the  revision  of  the  Supreme  Court  was  affected  by  a  writ 
of  error  to  the  court  of  last  resort  in  the  State  after  a  final  decision 
of  the  case.     That  has  been  changed  in  criminal  cases.     The  Con- 


OUR    FEDERAL    RELATIONS.  I05 

gress  in  1867,  in  anticipation  of  the  adoption  of  the  fourteenth 
amendment,  previously  proposed  in  Congress,  passed  a  law  as  part 
of  the  reconstruction  measures,  authorizing  the  federal  courts  to 
issue  the  writ  of  habeas  corpus  in  any  case  where  a  person  is  in 
custody  by  any  State  authority,  wherein  the  imprisonment  is  in 
violation  of  the  Constitution,  or  of  law,  or  of  a  treaty  of  the  United 
States,  and  the  act  of  Congress  in  1885  gave  an  appeal  in  such 
case  to  the  Supreme  Court  of  the  United  States.  After  the  issu- 
ance of  that  writ,  all  proceedings  taken  by  State  authority  were  de- 
clared to  be  null  and  void. 

* 

This  remedy  is  obtained  by  the  party  presenting  to  a  federal 
court  a  sworn  petition,  stating  the  facts  concerning  the  petitioner's 
detention,  and  the  writ  must  be  granted,  unless  it  appears  from  the 
petition  itself  that  the  applicant  is  not  entitled  thereto.  A  refusal 
to  grant  the  writ  of  habeas  corpus,  upon  the  petition  therefor, 
makes  a  case  subject  to  be  appealed  to  the  Supreme  Court  of  the 
United  States.  Under  these  provisions,  a  prosecution  of  any  per- 
son by  a  State,  wherein  a  federal  question  may  be  claimed  to  be 
applicable,  may  be  arrested,  and  suspended  for  supervision  by  the 
federal  courts  at  any  stage  of  the  proceedings,  from  an  arrest  un- 
der a  warrant  to  a  final  conviction,  both  inclusive,  which  has  been 
practically  demonstrated,  as  may  be  seen  by  reference  to  the  Su- 
preme Court  reports. 

By  the  fourteenth  amendment  the  rights  of  magna  charta  are  re- 
established in  the  States  by  the  Constitution  of  the  United  States, 
to  be  enforced  by  the  government  of  the  United  States,  whenever, 
in  the  opinion  of  the  federal  courts,  the  State  government  fails  to 
do  it.  In  a  case  involving  a  law  of  a  State,  wherein  the  Supreme 
Court  of  the  State  has  already  adjudged  it  to  be  constitutional,  the 
Supreme  Court  of  the  United  States  have  held  that  it  will  follow 
the  decision  of  the  Supreme  Court  of  the  State.  But  it  may 
some  time  happen,  that  the  question  has  not  been  decided  by  the 
Supreme  Court  of  the  State,  in  which  event,  the  Supreme  Court  of 
the  United  States  must  decide  the  question  according  to  its  own 
judgment.  Since  the  adoption  of  the  fourteenth  amendment,  and 
the  statutes  to  enforce  it,  the  Supreme  Court  of  the  United  States 
has  been  crowded  with  cases  of  both  a  civil  and  criminal  nature, 
which  is  likely  to  be  increased  rather  than  diminished  in  the  fu- 
ture. In  very  many  of  those  cases  relief  was  refused  by  the  Su- 
preme Court,  which  shows,  that  the  facility  of  obtaining  jurisdic- 
tion in  the  federal  court,  when  it  is  claimed,  causes  the  action  of 
the  State  authorities  to  be  suspended,  as  well  where  there  is  no 
good  ground  for  it,  as  when  there  is.  If  we  should  endeavor  to 
survey,  in  one  comprehensive  view,  the  numerous  limitations  upon 
the  actions  of  the  State,  and  the  various  grounds  for  the  supervis- 
ion of  their  legislative  and  judicial  action,  which  have  been  here- 
in collected  and  referred   to,   we  will   be  prepared  to   appreciate 


Io6  OUR    FEDERAL    RELATIONS. 

to  what  a  subordinate  condition  the  States  have  been  reduced, 
with  the  right  of  sovereignty  annihilated,  and  they  made  powerless 
to  resist  any  aggression  upon  their  supposed  reserved  rights,  that 
may  be  made  by  the  general  government  in  the  exercise  of  its  su- 
premacy. 

Reserved  rights!  Reserved  rights  of  the  States!  These  words 
were  of  frequent  use  once.  They  are  nearly  obsolete  now.  It  is 
simply  absurd  to  say  that  a  State  has  reserved  rights,  when  its  ex- 
ercise of  them  is  subject  to  the  control  of  another  power,  and  when 
it  has  no  means  of  preventing  that  control.  Limitation  or  restric- 
tion, whether  by  express  provision,  or  by  implication,  or  by  con- 
struction, is  control.  Supervision,  when  relief  from  State  action 
is  granted,  or  when  it  is  not,  is  control.  Indeed,  this  control  by 
limitation  and  by  supervision  now  extends  to  every  important  sub- 
ject of  legislation,  and  judicial  action  in  a  State,  relating  to  the 
rights  of  persons  and  of  property,  in  which  it  can  be  claimed  that 
a  federal  question  is  involved.  The  only  protection  that  a  State 
has  left  for  any  right,  is  in  the  election  of  its  members  of  Congress, 
and  of  electors  for  President,  except  that  which  is  furnished  by  the 
decisions  of  the  Supreme  Court,  in  declaring  laws  of  Congress  un- 
constitutional; or  otherwise  that  the  federal  question  presented  is 
not  operative  to  control  State  action,  and  that  body  is  itself  a 
creature  of  the  President  and  the  Senate.  That  court,  though  it 
has  often  protected  the  remaining  rights  left  to  the  States,  acts  on 
the  rule,  that  when  it  is  doubtful  whether  a  law  of  Congress  is  con- 
stitutional or  not,  the  law  is  maintained  by  its  decision,  which  is 
itself  one  of  the  means  of  increasing  the  power  of  the  general  gov- 
ernment as  against  the  States.  How  very  small  the  protection  to 
the  rights  of  the  State  is,  derived  from  the  privilege  of  electing  its 
members  of  Congress  and  Presidential  electors,  may  be  estimated, 
when  it  is  considered,  that  Texas  is  only  one  in  a  large  num- 
ber of  States,  that  its  peculiar  interests  and  principles  of  govern- 
ment are  different  from  those  in  the  majority  of  the  States,  and 
that  Congress  is  no  longer  a  deliberative  body,  governed  by  argu- 
ment and  consultation,  and  by  the  free  and  consciencious  decision 
of  each  and  all  of  its  members,  but  is  governed  by  party  caucus  re- 
solves, determined  outside  of  the  halls  of  legislation.  Under  such 
a  mode  of  procedure  a  mere  majority  in  caucus  of  one  political 
party  may  dictate  measures,  contrary  to  the  judgment  of  the  ma- 
jority of  all  of  the  members  of  Congress,  thereby  making  a  minor- 
ity government,  and  placing  the  good  of  the  party  above  the  good 
of  the  country. 

Having  shown  the  object  and  effect  of  the  reconstruction  laws 
and  constitutional  amendments,  in  increasing  the  subordinate  con- 
dition of  the  States,  it  remains  to  be  shown  how  these  measures 
were  carried  out  in  Texas. 

During  the  period   of  reconstruction,  it  was  contemplated  that 


OUR    FEDERAL    RELATIONS.  I07 

The  State  provisional  governments  should  be  administered,  by  loy- 
al officers  who  could  take  the  prescribed  oath  of  office  (common- 
ly then  called  the  iron-clad  oath),  and  by  military  commissions, 
acting  as  courts  when  deemed  necessary.  This  was  effected  by 
the  powers  given  to  the  military  commanders  to  remove  those  in 
office  and  appoint  others.  This  was  done  in  Texas  in  the  manner 
as  follows: 

Headquarters,  District  of  Texas,  Galveston,  April  15,  1867,  by 
special  order  No.  60  Maj.  Gen'l  Griffin  forbade  the  election  of 
officers  by  the  people. 

At  headquarters  5th  military  district,  New  Orleans,  La.,  July 
30,  1867,  a  special  order  No.  105  was  issued  by  Major  General  P. 
H.  Sheridan,  removing  Governor  Throckmorton  as  an  impediment 
to  reconstruction,  and  appointing  E.  M.  Pease  Governor  of  Texas 
in  the  provisional  government.  Major  General  Griffin,  head- 
quarters at  Galveston,  August  27,  1867,  issued  order  No.  160,  re- 
moving S.  Crosby,  Commissioner  of  the  General  Land  Office;  W. 
L.  Robards,  Comptroller:  M.  H.  Royston,  Treasurer;  W.  M.  Wal- 
ton, Attorney  General. 

Major  General  Griffin,  on  the  loth  day  of  September,  1867,  is- 
sued an  order  No.  169,  removing  the  following  judges  of  the  Su- 
preme Court  from  office  "on  account  of  their  known  hostility  to 
the  general  government,"  Geo.  F.  Moore,  R.  Coke,  S.  P.  Donley, 
A.  H.  Willie,  Geo.  W.  Smith,  and  appointing  in  their  places  E.  J. 
Davis,  C.  Caldwell,  Amos  Morrill,  Livingston  Lindsey,  and  A.  H. 
Latimer.  Very  soon  followed  orders  removing  district  judges  in 
many  if  not  in  most  of  the  districts,  county  judges,  sheriffs,  clerks, 
and  other  officers  in  the  different  counties,  and  appointing  their 
successors. 

To  men  who  had  been  reared  and  lived  in  a  free  country, to  whom 
constitutional  government  was  endeared  as  the  protection  of  that 
which  was  worth  living  for,  accustomed  to  be  governed  by  officers 
elected  by  the  free  choice  of  themselves  as  qualified  voters,  here 
was  an  astounding  and  harrowing  spectacle  in  Texas, — in  Texas, 
whose  sons,  by  their  valor  and  love  of  freedom,  had  added  lustre 
to  the  American  fame,  whose  patriots  and  statesmen  had  snatched 
freedom  from  the  grasp  of  tyranny,  and  planted  it  in  her  broad  do- 
main, and  afterwards  added  that  broad  domain,  with  all  its  grand 
historic  achievements  and  magnificent  natural  wealth,  to  the 
American  Union,  a  free,  unbought  tribute  to  Anglo-American  unity 
on  this  continent.  That  spectacle  was  the  people's  government, 
peacefully  erected  and  being  peacefully  administered,  expiring 
quickly  in  view  of  a  drawn  sword,  and  a  substitute  spoken  into  life 
by  a  military  officer.  This  substitute  was  composed  of  officers  se- 
lected because  of  their  opposition  or  antagonism  to  the  mass  of 
people  they  had  to  govern.  This  tragic  act  of  power,  exerted  over 
a  disarmed  and  helpless  people,  will  stand,  in  all  future  history,  a 


Io8  OUR    FEDERAL    RELATIONS. 

monument  commemorating  the  final   end  of  all   State  sovereignty 
in  this  country. 

Such  was  the  government  imposed  upon  the  people  of  Texas  for 
several  years,  to  train  them  into  the  knowledge  of  how  to  establish 
a  loyal  and  republican  government  in  Texas;  that  being  the  object 
of  it,  as  expressed  in  the  reconstruction  act  of  Congress  of  1867. 

These  officers,  not  one  of  whom,  perhaps,  could  have  been 
elected,  had  the  mass  of  the  people  voted  who  were  formerly  qual- 
ified voters,  proceeded  to  administer  the  government  by  holding 
the  courts  under  the  laws  of  the  State.  In  this  we  had  a  most  not- 
able example  of  the  incompetency  of  a  government  placed  over  a 
people  to  govern  them  without  their  consent,  and  without  the  con- 
fidence of  the  people  to  give  it  their  cordial  support,  It  was  the 
case  of  the  government  against  the  people,  and  the  people  grudg- 
ingly submitting  to  what  they  could  not  help,  with  no  feeling  of  re- 
sponsibility for  its  acts,  whether  good  or  bad. 

Military  commissions  were  also  instituted  to  try  defendants  for 
alleged  criminal  offenses.  They,  in  their  proceedings,  occupied  a 
sort  of  hybrid  position,  between  a  criminal  court  and  a  court 
martial.  Being  composed  of  army  officers,  their  want  of  legal 
knowledge  was  somewhat  compensated  by  their  sense  of  honor  and 
gentlemanly  deportment.  The  petty  military  officers  in  the  freed- 
man's  bureau  played  the  tyrant  on  a  small  scale,  in  the  effort  to 
protect  the  negroes  from  outrages  committed  by  the  whites.  To 
all  this  may  be  added  the  fact  that  United  States  troops, — regi- 
ments, companies,  or  sqaads  — were  stationed  in  different  parts  of 
the  State  to  sustain  the  government,  and  to  hold  the  people  in 
duress  to  secure  their  submission  to  it, — a  most  unnecessary  pre- 
caution, as  the  people  of  Texas  had  already  served  an  apprentice- 
ship to  submission. 

Any  attempt  to  point  out  the  incidents  connected  with  the  ad- 
ministration of  such  a  government,  must  be  deferred  for  the  pres- 
ent. The  effect  upon  the  minds  of  the  people  was  a  gloomy  de- 
spondency, and  dread  of  evil,  relieved  only  by  a  buoyant  man- 
hood, that  inspired  the  hope  for  future  relief.  As  time  passed, 
the  commanding  general,  pursuant  to  the  acts  of  reconstruction, 
took  steps  to  have  a  registration  of  legal  voters.  All  persons  who 
had  previously  held  office  in  the  State  and  had  afterwards  partici- 
pated in  the  so  called  "rebellion"  in  favor  of  the  South,  were  ex- 
cluded from  registration.  That,  of  course,  disfranchised  a  large 
body  of  persons,  embracing  leading  citizens,  from  governors  down 
to  the  lowest  officers  who  held  office  since  annexation,  most  of 
whom  had  participated,  in  some  way,  in  the  war  in  favor  of  the 
South.  That  being  completed,  orders  were  issued  in  1868  for  the 
election  of  delegates  to  the  convention  by  the  registered  voters. 
The  convention  was  assembled  at  Austin,  to  form  a  Constitution, 
on  the  ist  day  of  June,  1868.     Out  of  the   forty-five  delegates  in 


OUR    FEDERAL    RELATIONS.  I09 

that  convention,  there  were  perhaps  a  half  dozen  men  of.distinction, 
who  had  been,  and  have  since  been  known  outside  of  their  own 
neighborhoods.  Judge  E.  J.  Davis  was  elected  president  of  the 
convention.  It  continued  in  session  until  the  21st  of  August,  1868, 
when  it  adjourned.  It  reconvened  on  the  7th  of  December  fol- 
lowing, and  adjourned  finally  on  the  6th  of  February,  1869.  ^^ 
explanation  of  its  continuance  as  a  body,  in  and  out  of  session,  for 
eight  months,  is  to  be  found  in  the  fact,  that  it  was  largely  engaged 
in  legislation  on  numerous  subjects. 

No  further  reference  will  be  made  to  the  work  of  this  conven- 
tion, than  what  is  necessary  to  show  that  the  Constitution  adopted 
by  it,  and  the  succeeding  government  under  it,  were  so  shaped 
as  to  continue  the  process  of  reconstruction  inaugurated  by  the 
Congress.  The  Constitution,  by  an  "election  declaration,"  was 
submitted  to  the  qualified  and  registered  voters  at  an  election  to 
be  held  on  the  first  Monday  in  July,  1869,  for  its  adoption  or  re- 
jection; and,  at  the  same  time,  said  voters  were  to  elect  State  and 
county  officers,  the  returns  of  said  election  to  be  made  to  the  com- 
manding general  of  the  district,  who  should  declare  the  result  of 
the  election,  and  give  certificates  to  the  officers  elected.  The 
Constitution  repudiated  the  "heresies  of  nullification  and  seces- 
sion," and  provided  that  no  person  shall  be  allowed  to  vote  or 
hold  office,  who  is  or  may  be  "disqualified  by  the  Constitution  of 
United  States,  until  such  disqualification  is  removed  by  Congress; 
made  the  term  of  service  of  the  governor  and  other  executive  offi- 
cers to  be  four  years;  made  the  offices  of  the  attorney  general, 
judges  of  the  supreme  and  district  courts  appointive  by  the  gov- 
ernor, with  the  confirmation  of  the  Senate;  the  judges  of  the  Su- 
preme Court  were  to  hold  nine  years,  and  those  of  the  district 
courts  eight  years;  jurors  were  required  to  have  the  same  qualifi- 
cations as  voters.  Thereby  most  of  the  leading  citizens  were  de- 
barred from  a  participation  in  either  making  or  executing  the  laws, 
by  which  they  were  governed.  It  had  been  made,  by  the  first  re- 
construction law  of  Congress,  a  prerequisite  t<>  the  admission  of 
members  of  Congress,  that  the  Legislature  elected  under  the  Con- 
stitution, when  approved  by  Congress,  should  adopt  the  fourteenth 
amendment.  The  Constitution  having  been  approved,  the  mem- 
bers elected  met  in  session  at  the  capital,  with  E.  J.  Davis  as  gov- 
ernor of  the  State,  on  the  8th  day  of  February,  1870,  and  ratified  the 
fourteenth  and  fifteenth  amendments  to  the  Constitution, and  elect- 
ed Senators  to  Congress. 

An  act  of  Congress  was  passed  on  the  joth  day  of  March,  1870, 
recognizing  the  action  of  the  Legislature  as  being  in  compliance 
with  whiit  had  been  required  to  entitle  the  Slate  of  Texas  to  repre- 
sentation in  Congress;  and  proceeded  further  (to  make  sure  that 
the  State  government  should  be  organized,  and  continue  to  be 
carried  on  in  full   accordance  with  its  plan  of  reconstruction),  to 


no  OUR    FEDERAL    RELATIONS. 

enact,  that  before  any  member  of  the  Legislature  of  said  State 
shall  take  or  resume  his  seat,  or  any  officer  of  said  State  shall  enter 
upon  the  duties  of  his  office,  he  shall  take  and  subscribe,  and  file 
in  the  office  of  the  Secretary  of  State  of  Texas,  for  permanent  pres- 
ervation, an  oath  or  affirmation  in  the  following  language:  (then 
follows  the  oath  required  of  voters  for  registration).  This  oath 
was  required  to  be  taken  in  thirty  days  after  the  passage  of  the 
act,  under  penalty  of  forfeiture  of  office  upon  failure  to  do  so. 

So,  as  well  might  have  been  anticipated,  the  officers,  for  the 
most  part,  in  Governor  Davis'  administration,  were  in  full  sympa- 
thy with  the  reconstruction  measures,  as  evidenced  by  the  regis- 
trations and  elections  held  under  armed  police  guards,  arrests 
made  by  an  armed  police,  officered  and  equipped  as  military  com- 
panies, the  declaration  of  martial  law,  the  wrongs  committed  by 
incompetent  and  reckless  officers,  extravagant  legislation,  and 
numerous  other  causes  of  disturbance  and  harassment  of  the  peo- 
ple. Such  an  excess  of  power  must  exhaust  its  fury  in  time,  when 
exerted  upon  a  submissive  population;  and  so  it  did,  after  nine 
long  years  from  the  close  of  the  war,  during  which  time  the  peo- 
ple were  sorely  drilled  and  disciplined  in  the  way  to  make  a  loyal 
republican  government.  If  by  loyal  government  it  was  meant  a 
politically  republican  government,  the  discipline  in  Texas  failed 
of  its  intended  effect;  for  in  the  fall  of  1873,  after  the  disqualifica- 
tion to  vote  and  to  hold  office  had  been  removed,  the  mass  of  the 
people  rushed  to  the  polls  and  re-established  the  people's  govern- 
ment, with  Richard  Coke  at  its  head,  as  governor,  and  soon  the 
favorites  of  the  central  power  disappeared  from  the  public  stage 
of  action. 

That  was  a  Texas  Democratic  reconstruction.  And  now,  in 
1891,  after  its  continuance  for  sixteen  years  in  Texas,  and  in  the 
other  Southern  States,  there  is  a  powerful  party  in  Congress,  in  a 
desperate  struggle  to  supplement  the  Congressional  reconstruction 
commenced  in  1867,  by  the  establishment  of  cloture  (an  English 
importation),  by  which  the  caucus-constrained  majority  in  either 
house  can  close  the  debate  upon  any  measure  at  discretion,  with- 
out allowing  the  minority  to  discuss  it,  for  the  enlightenment  of 
the  public,  and  by  that  means  to  force  the  passage  of  the  election 
bill,  the  object  of  which  is  to  take  from  the  States  the  manage- 
ment of  the  election  of  their  own  representatives  in  Congress,  and 
place  it  under  the  control  of  Congress. 

That  measure,  if  it  becomes  a  law,  will  certainly  complete  the 
Congressional  reconstruction  of  the  eleven  Southern  States,  if  any- 
thing will  do  it.  That  is  its  object  now;  but  its  effect  would  be  to 
establish  a  central  power,  that  can  at  pleasure  destroy  what  little 
is  left  in  all  of  the  States  of  independent  local  self  government. 


OUR    FEDERAL    RELATIONS.  Ill 


A  LECTURE. 


supplementary  to    the    preceding    lectures    upon  president 
Johnson's 
struction. 


Johnson's  reconstruction,  and   the   congressional  recon- 


The  preceding  lectures  having  treated  mainly  of  the  two  recon- 
structions of  the  Southern  States,  including  Texas,  the  one  by 
President  Johnson,  and  the  other  by  the  Congress  of  the  United 
States,  there  are  numerous  matters  of  interest  that  occurred  in 
Texas,  between  the  19th  ef  June,  1865,  when  Gen.  G.  Granger,  of 
the  federal  army,  issued  his  proclamation  at  Galveston,  taking 
military  possession  and  command  of  Texas,  and  the  8th  day  of 
February,  1870,  when  the  State  government  went  into  operation 
under  Governor  E.  J.  Davis. 

During  all  that  period  of  time,  federal  troops  were  stationed  in 
nearly  all  of  the  counties  in  the  State.  In  the  large  towns  there 
were  regiments,  or  several  companies  of  troops,  and  in  small  towns 
squads  of  troops  were  stationed,  all  acting  directly  or  indirectly 
under  a  commanding  general. 

The  objects  of  the  military  were  to  keep  the  people  in  subjec- 
tion, and  to  secure  the  punishment  of  violators  of  the  law. 

As  to  the  object  first  mentioned,  there  was  no  occasion  or  neces- 
sity for  any  active  effort  on  the  part  of  the  military,  as  the  mass 
of  the  people  were  anxious  for  peace,  and  the  few  disaffected  per- 
sons had  no  encouragement  from  the  rest,  to  make  any  combined 
resistance  to  the  occupation  and  control  of  the  country  by  the 
federal  troops. 

The  second  object  mentioned,  the  effort  to  secure  the  punish- 
ment of  violators  of  the  law, — the  military  found  opportunities  of 
exercising  their  authority  in  various  ways. 

A.  J.  Hamilton  arrived  in  Texas  in  July,  1865,  and  having  ap- 
pointed civil  officers  of  the  State,  except  justices  of  the  Supreme 
Court,  the  different  courts  were  regularly  held  (except  the  Supreme 
Court),  during  the  time  he  acted  as  provisional  governor  of  the 
State.  The  federal  courts  were  also  held.  So  also  those  courts, 
as  well  as  the  Supreme  Court  of  the  Stale,  were  held  during  the 
time  that  Jas.  W.  Throckmorton  was  governor,  under  the   Consti- 


112  OUR    FEDERAL    RELATIONS. 

tution  of  1866,  by  officers  elected  by  the  people,  until  they  ceased 
to  be  in  office  by  the  inauguration  of  the  military  government, 
which  took  place  during  the  months  of  July,  August,  and  Septem- 
ber, 1867,  by  the  removal  of  those,  who  had  been  elected  or  ap- 
pointed to  office  in  the  State,  and  the  appointment  of  officers  to 
fill  their  places. 

During  this  time,  from  the  summer  of  1865  to  the  fall  of  1867,  the 
federal  troops  in  Texas  were  actively  engaged  in  making  arrests  of 
persons  accused  of  violations  of  the  law,  upon  complaints  usually 
made  by  Southern  loyalists,  or  by  the  negroes,  and  perhaps  mostly 
by  the  negroes.  Indeed,  the  protection  of  the  negroes  seemed  to 
be  the  main  object  of  their  being  quartered  in  this  country.  The 
negroes  resorted  to  them  continually,  as  their  protectors,  which 
had  the  effect  to  alienate  them  as  a  class  from  the  whites,  for 
whom  generally  they  had  to  labor  for  a  support.  Under  the  shield 
of  such  protection,  they  met  frequently  in  large  assemblies,  in 
which  speeches  were  made,  complaining  of  how  badly  they  had 
been  treated,  and  how  they  had  left,  or  been  turned  off  by  their 
former  owners,  with  nothing  for  their  support.  The  fact  was  noto- 
rious that  however  well  they  had  been  treated,  they  left  their 
homes,  and  went  to  work  for  some  one  else,  as  soon  as  practicable, 
— deeming  not  to  regard  themselves  free  until  they  had  done  it, 
so  that  in  a  short  time,  very  few  persons  had  the  same  negroes  em- 
ployed, that  they  previously  owned  as  slaves.  It  was  curious  to 
witness  their  first  efforts  of  acquiring  the  possession  of  property. 
The  first  thing  acquired  by  them  generally  was  a  dog,  the  next  a 
gun,  and  the  next  a  horse,  and  then  better  clothes.  Provisions  to 
live  on  amounted  to  nothing,  just  so  that  they  could  get  something 
that  they  could  subsist  on,  with  an  occasional  bottle  of  ardent 
spirits.  Though  not  all  of  them  were  intemperate.  Their  women, 
boys,  and  girls  attended  their  public  gatherings,  and  their  preach- 
ers were  their  most  influential  leaders  and  speakers.  In  such 
gatherings  in  a  town,  those  of  them  that  had  horses  would  mount 
them,  and  fill  the  streets  in  desultory  parades.  From  the  first, 
they  were  encouraged  by  the  countenance  given  them  by  the  sol- 
diery, and  by  the  encouragement  of  camp-followers,  and  of  other 
white  friends  to  assert  their  equality  with  the  white  people,  which 
was  awkwardly  and  unnecessarily  attempted  by  them  in  a  way  to 
engender  disturbance  and  conflict,  which  would  result  in  a  com- 
plaint to  the  military,  and  the  arrest  of  some  one.  This  irregular 
action  might  have  subsided  of  itself  in  time,  had  not  certain  white 
men  systemized  the  process  of  antagonism,  by  establishing  amongst 
the  negroes  secret  societies,  then  called  "loyal  leagues,"  in  which 
those  whites  participated.  In  these  conclaves,  held  in  secret,  us- 
ually in  the  night  time,  the  negroes  were  taught  that  the'white  peo- 
ple were  their  enemies,  and  that  they  were  in  danger  of  being  en- 
slaved by  them.     Very  soon  the  impression  amongst  them  became 


OUR    FEDERAL    RELATIONS.  II3 

prevalent,  and  wide-spread  over  the  State,  that  they  would  be  given 
a  portion  of  the  wealth  of  the  white  people,  as  by  their  labor  as 
slaves  it  had  been  largely  created  for  them.  Finally  it  assumed 
the  shape,  that  each  family  was  to  be  given  at  least  forty  acres  of 
land  and  a  mule;  and  whether  this  was  done  or  not,  the  expecta- 
tion was  general  amongst  them,  that  the  government,  that  set  them 
free,  would  make  some  provision  for  them  out  of  the  property  of 
the  white  people.  From  their  standpoint,  it  seemed  to  them  just 
and  proper,  that  it  should  be  done,  and  they  confidently  expected 
it.  So  strong  and  universal  did  this  become,  that  Gov.  Hamilton 
thought  it  necessary  to  issu^a  proclamation,  which  was  circulated 
and  read  to  them,  in  which  he  advised  them  to  go  to  work,  and 
make  and  save  property  for  themselves,  and  not  to  indulge  in  the 
expectation  that  the  government  would  give  them  any  property,  or 
make  any  provision  for  them.  Still  the  proclamation  did  not,  for 
a  long  time,  have  the  effect  to  remove  the  delusion  so  deeply  fixed 
in  their  minds. 

In  detailing  the  events  during  these  times,  it  will  convey  a  more 
distinct  idea  of  them  to  give  isolated  ocurrences,  as  samples  of 
what  must  have  often  happened,  under  the  influences  theneperating. 
For  what  occured  at  one  time  and  place,  was  likely  to  occur  at 
others,  or  at  least  something  similar  to  it. 

A  man  residing  with  his  family  near  Tyler,  Texas,  in  the  summer 
of  1S66,  hired  a  negro  man  and  woman  of  middle  age  to  work  on 
his  farm.  Upon  the  occasion  of  their  getting  leave  to  visit  town 
on  a  Saturday,  which  was  a  favorite  day  for  their  meeting  in  great 
numbers  in  town,  the  negro  woman,  before  starting,  came  into  the 
house,  and  addressing  the  lady  of  the  house  said:  "Miss',  I  am 
going  to  town  to  get  my  property,  but  I  won't  take  your  place,  but 

I  will  take  the  place  of  Mr. ," — it  being  the  farm  of  one    of 

the  neighbors.     She  left,  being  quite  elated  with  the  prospect. 

Upon  a  certain  Saturday  about  the  same  time,  great  numbers  of 
them  congregated  in  Tyler,  from  different  parts  of  the  county, 
evidently  upon  notice  circulated  for  the  purpose,  some  with  wagons, 
others  on  horseback,  and  others  by  walking,  under  an  expectation 
(as  it  was  afterwards  proved  on  a  trial),  that  a  division  of  property 
for  their  benefit  was  to  be  made  there  that  day. 

Sometimes  the  common  soldiers  treated  the  negroes  very  rough- 
ly, for  which  the  negroes  would  rather  make  excuses  than  com- 
plaints, although  they  were  always  anxious  to  run  to  the  officers 
with  complaints  against  other  white  persons.  An  instance  of  this 
occured  in  a  town,  where  a  negro  man  with  his  wife  rented  a  little 
house  in  an  alley,  and  established  a  cake  shop,  when  several 
drunken  soldiers  entered  their  house,  knocked  the  man  down,  run 
him  out  of  the  house,  and  took  or  destroyed  all  his  ginger-cakes. 
His  former  owner  hearing  of  it,  called  upon  the  negro  the  next  day 
to  find  out  about  the  outrage,  when  the  negro    man   could    hardly 


114  OUR  FEDERAL  RELATIONS. 

be  induce  to  tell  anything  about  it.  The  reason  was,  they  looked 
upon  the  soldiers  as  privileged  persons,  that  could  do  what  they 
pleased  with  both  black  and  white  people,  and  the  soldiers, 
especially  when  intoxicated,  seemed  to  think  and  often  acted  upon 
the  same  idea.  This  was  the  cause  of  numerous  disturbances,  and 
some  terrible  tragedies.  One  of  them  ocurred  in  Tyler,  where 
there  were  four  companies  of  federal  troops  stationed  a  mile  south 
of  town,  under  the  command  of  Lieut.  Col.  Montgomery.  A 
number  of  soldiers  being  in  town  drinking  during  the  day  upon  one 
occasion,  when  a  young  man,  of  the  country,  a  Mr.  Murray,  who 
had  arisen  to  be  a  captain  in  the  confederate  service  (a  much 
estemed  only  son  of  a  poor  widow),  who  had  also  been  drinking, 
though  not  drunk,  got  upon  his  horse  and  started  home,  when  he 
was  met  in  the  street  by  a  drunken  soldier,  who  took  hold  of  his 
bridle  and  asked  him  to  get  down  and  drink  with  him,  which  he 
declined  to  do,  and  told  the  soldier  to  let  go  his  bridle,  and  get 
out  of  his  way,  which  the  soldier  refused  to  do.  Harsh  words 
passed  between  them,  and  the  soldier  hit  him  with  a  stick,  upon 
which  the  young  man  got  down  and  cut  the  soldier  badly  with  his 
knife.  The  soldier  fell  upon  the  ground,  and  laid  there.  The 
scene  attracted  a  crowd  of  peple,  soldiers  and  others.  An  officer 
rashed  up,  and  arresting  the  young  man,  hurried  with  him  to  the 
jail,  and  put  him  in  it.  The  Colonel  promptly  took  the  keys  of  the 
jail,  and  placed  a  guard  of  soldiers  at  the  door  of  it.  The  news  of 
the  occurrence  soon  spread  to  the  camp,  and  a  crowd  of  soldiers 
came  running  into  town,  and  collected  around  the  jail.  They  did 
not  break  open  the  jail,  dobtless  because  they  were  not  prepared 
with  the  necessary  implements  to  do  it.  The  next  night  they  came 
and  broke  into  the  jail  took  the  young  man  out  and  bayoneted 
and  shot  him  to  death  in  the  jail  yard.  It  appeared  from  the 
result  exhibited  afterwards,  that  the  soldier  fell  down  from  his 
drunkeness,  as  well  as  from  his  injuries,  and  though  at  the  time  he 
was  supposed  by  the  bystanders  to  be  mortally  wounded,  he  soon 
recovered  from  his  wounds.  The  colonel  in  command  was  fully 
aware  of  the  rage  of  the  soldiers,  and  was  informed  of  their  threats, 
still  no  proper  steps  were  taken  by  him  to  prevent  the  murder  of 
the  young  man.  If  the  citizens  had  collected  and  undertaken  to 
protect  him  in  jail,  it  would  have  resulted  in  a  deadly  conflict  of 
which  they  were  then  fully  satisfied  from  the  hostile  spirit  manifest- 
ed by  the  soldiers,  and  the  apparent  indifference  of  the  officers. 
Many  of  the  citizens  came  to  town  upon  hearing  of  the  murder, 
and  though  they  said  but  little,  their  countenances  spoke  for  them 
loudly,  and  right  then,  if  a  few  prominent  citizens  had  taken  the 
lead,  and  passed  the  word  around,  a  thousand  trained  ex-confederate 
soldier  might  have  been  mustered  in  thirty  six  hours,  and  masacrep 
the  soldierss  at  night  in  their  camp.  Nothing  but  a  knowledge  of 
the  terrible  consequence  of  such  a  thing  upon  the  whole    commu- 


OUR   FEDERAL    RELATIONS.  II5 

nity,  and  upon  the  State  at  large,  prevented  it  from  being  done. 
No  effort  was  ever  made  by  the  officers,  so  far  as  known  to  the 
citizens,  to  ferret  out  and  punish  the  guilty  soldiers. 

It  was  generally  on  the  public  roads,  streets,  sidewalks  and  other 
public  places  where  the  negroes  assumed  their  newly  acquired 
equality  with  the  whites,  and  very  often  it  was  done  in  a  manner 
that  was  an  assumption  of  superiority,  by  failing  to  divide  with  the 
whites  in  passing  the  roads,  streets,  and  sidewalks.  This  was  very 
offensive  to  the  whites — being  so  different  from  the  former  habits 
of  the  negroes — and  caused  an  increase  of  antagonism,  resulting 
sometimes  in  angry  abuse,  and  even  injuries  inflicted  on  the  ne- 
groes. Notwithstanding  this,  it  was  a  noticeable  fact  that  there 
was  a  large  class  of  persons,  especially  those  who  had  owned  ne- 
groes previously  as  slaves,  to  whom  the  negroes  paid  usually  a  re- 
spectful deference,  which  being  reciprocated,  there  was  seldom 
any  trouble  between  them.  It  was  very  seldom  that  any  negro 
would  enter  any  white  man's  private  residence  to  manifest  this  as- 
sumption of  equality.  A  case  of  that  kind  was  reported  to  have 
taken  place  in  a  town  in  Texas.  A  negro  man  came  into  a  lady's 
sitting  room  or  parlor,  and  took  a  seat  in  it,  and,  upon  being  or- 
dered out,  refused  to  go,  saying  he  was  as  good  as  she  was,  and 
that  he  had  come  to  see  her.  She,  of  course,  was  shocked  and 
alarmed,  but  had  presence  of  mind  to  make  some  excuse  to  go  into 
another  room,  from  which  she  returned  with  a  cocked  pistol  in 
hand,  and  again  ordered  him  out.  He  again  refused,  and  she  shot 
him. 

No  other  similar  tragedy  was  heard  ofabou;  that  time.  During 
the  administration  of  Provisional  Governor  Hamilton  there  was  a 
class  ot  white  men — being  those  who  were  opposed  to  the  South- 
ern side  in  the  war — who  made  themselves  very  active  in  getting 
up  indictments  against  the  secessionists  for  alleged  offenses,  charg- 
ed to  have  been  committed  during  the  war.  In  such  cases  the 
soldiers  were  employed  in  making  arrests  very  often,  or  in  aiding 
the  sheriffs  to  make  them.  Fortunately,  very  few  trials  of  such 
cases  were  had  in  the  courts  until  after  the  judges  and  other  offi- 
cers had  been  elected  under  the  administration  of  Governor 
Throckmorton,  by  which  most  of  those  indicted  were  able  to  make 
successful  defenses.  It  happened  also  that  complaints  would  be 
made  to  the  military  officers,  which  caused  such  arrests  to  be 
made  of  parties,  who  were  kept  in  confinement  by  the  military  au- 
thorities indefinitely,  awaiting  further  action  by  the  parties  com- 
plaining, in  getting  up  prosecutions.  It  often  happened  that,  as 
nothing  further  would  be  done,  these  arrested  parties  would  be  left 
on  the  hands  of  the  military,  who  had  no  authority  to  try  them, 
and  who  after  being  detained  for  a  time,  would  have  to  be  dis- 
charged.    Thi^  became  a  subject  of  great  annoyance  to  the  mili- 


Il6  OUR    FEDERAL    RELATIONS. 

tary  officers,  which  finally  made  them  averse  to  detaining  parties, 
unless  they  were  held  under  a  charge  by  some  legal  authority. 

When  the  members  of  the  convention  met  at  Austin  on  the  7th 
of  February,  1866,  it  was  currently  reported,  that  there  were  there 
in  the  post  commanded  by  Col.  Reynolds,  from  one  to  two  hundred 
prisoners  confined,  who  had  in  like  manner  been  arrested  and 
detained,  most  of  whom  were  never  prosecuted  in  the  courts. 
They  had  been  collected  there  from  different  parts,  and  some  of 
them,  from  distant  counties  in  the  State.  At  that  time  there 
was  a  man,  who  had  been  indicted  in  western  Texas  for  an 
alleged  offense  during  the  war.  An  officer  with  a  squad  of 
soldiers,  under  military  orders,  had  been  sent  two  hundred  and 
fifty  miles,  and  arrested  him  and  brought  him  to  Austin  at  the 
meeting  of  the  convention.  The  officer  having  him  in  charge 
sought  to  turn  him  over  to  the  post,  but  as  he  had  arrested 
and  broaght  him  under  no  capias  or  other  legal  authority,  Col. 
Reynolds  would  not  receive  him,  and  he  was  set  at  liberty, 
and  never  was  brought  to  trial  on  the  charge. 

The  courts  held  by  the  officers  appointed  by  Gov.  Hamilton 
did  not  generally  have  the  confidence  of  the  mass  of  the  people, 
of  which  they  were  well  aware,  and  therefore  there  was  but  little 
efficient  government  during  that  time.  The  courts  held  by  the 
officers  selected  under  the  administration  of  Gov.  Throckmorton 
while  it  lasted,  were  better  sustained  by  the  people,  so  that  it  began 
to  present  the  appearance  of  a  regular  civil  government,  and  there 
was  much  less  interference  in  it  by  the  military. 

Shortly  after  the  surrender,  the  federal  courts  were  held,  in 
which  much  was  done,  affecting  the  interests  of  the  people  of  the 
State,  which  will  be  better  understood  by  being  presented  later  on 
in  a  connected  and  sephrate  consiileration. 

There  was  one  measure  adopted  in  Gov.  Throckmorton's  ad- 
ministration, by  an  act  of  Nov.  6th,  1866,  that  continued  for  a 
number  of  years,  which  requires  notice,  because  it  was  an  experi- 
ment then  for  the  first  time  tried  in  this  State,  though  it  had  long 
been  authorized  by  the  Constitution.  A  law  was  passed  establish- 
ing a  tax  upon  incomes.  This  required  investigation  of  the  private 
affairs  of  persons  to  ascertain  the  annual  profits  of  their  business, 
which^proved  to  be  annoying  and  troublesome.  In  a  new  country 
like  Texas  was,  there  were  few  persons  who  lived  upon  an  income 
derived  from  an  investment  in  property.  Nearly  all  of  them,  that 
had  property  used  it  in  connection  with  their  own  skill  and  labor 
to  earn  a  livlihood,  and,  when  peacticable,  an  increase  of  property. 
It  might  happen  however,  as  it  did  in  some  instances,  that  there 
would  be  a  loss  instead  of  an  increase  of  property;  for  some 
merchants,  and  others,  who  handled  large  amounts  of  property  in 
business,  returned  no  income,  meaning  surplus  increase,  and  conse- 
quently paid  no  income  tax.     That  tax  was  abandoned  after  it  was 


OUR    FEDERAL    RELATIONS.  117 

shown  to  be  impracticable,  because   it   was   not   adapted   to    our 
condition. 

During  the  existence  of  the  military  government,  from  the  fall  of 
1867  to  February,  1870,  when  the  State  government  was  inaugurated 
under  Gov.  E.  J.  Davis,  the  departure  from  a  regular  administration 
in  public  affairs,  was  much  increased  by  the  extraordinary  meas- 
ures that  were  adopted  and  enforced.  Fortunately,  perhaps,  the 
people  of  Texas  had  received  considerable  experience  in  submis- 
sion to  arbitrary  military  rule  during  the  four  years  of  the  war,  and 
were  consequently  the  better  able  to  bear  it  when  it  was  imposed 
on  them,  by  the  power  of  the  federal  government. 

The  plan  of  government  of  the  eleven  Southern  States,  as  prescrib- 
ed by  the  reconstruction  laws  of  Congress,  passed  from  the  2d  of 
March  to  the  19th  of  July,  1867,  was  very  similar  to  that  which 
is  usually  adopted  by  nations  at  war,  when  one  of  them  subdues  and 
takes  possession  of  a  portion  of  the  territory  of  the  other,  and 
holds  it  subject  temporarily,  by  allowing  the  laws  of  the 
country  to  be  enforced  by  its  civil  authorites,  subject  to  such 
control  over  the  laws,  and  the  civil  officers,  by  the  military 
officers  in  command,  as  may  be  directed  or  permitted  by  the  con- 
quering nation. 

This  course  is  adopted  because  the  ordinary  administration  of 
a  government  should  be  carried  on,  and  it  would  be  impracticable 
to  suddenly  institute  a  different  system  of  laws  to  be  administered 
by  a  body  of  civil  officers,  differently  organized  and  with  different 
powers  and  modes  of  action. 

It  was  therefore  provided  in  said  acts  of  Congress,  that  "until 
the  people  of  said  rebel  States  shall  be  by  law  admited  to  rep- 
resentation in  the  Congress  of  the  United  States,  any  civil  govern- 
ments which  may  exist  therein  shall  be  deemed  provisional  only, 
and  in  all  respects  subject  to  the  paramount  authority  of  the  Unit- 
ed States,  at  any  time  to  abolish,  modify,  control,  or  supersede  the 
same." 

It  was  further  provided  that  "the  commander  of  any  district 
named  in  said  act  shall  have  power,  subject  to  the  disapproval  of 
the  general  of  the  army  of  the  United  States,  and  to  have  effect  till 
disapproved,  whenever  in  the  opinion  of  such  commander  the 
proper  administration  of  said  act  shall  require  it,  to  suspend  or 
remove  from  office,  or  from  the  performance  of  official  duties,  and 
the  exercise  of  official  powers,  any  officer  or  person,  holding  or 
exercising,  or  professing  to  hold  or  exercise  any  civil  or  military 
office  or  duty  in  such  district,  under  any  power,  election,  appoint- 
ment, or  authority  derived  from,  or  granted  by,  or  claimed  under 
any  so-called  State  or  government  thereof,  or  any  municipal  or 
other  division  thereof,  and  upon  such  suspension  or  removal,  such 
commander,  subject  to  the  disapproval  of  the  general  as  aforesaid, 
shall  have  power  to  provide  from  time  to  time  for  the  performance 


Il8  OUR    FEDERAL    RELATIONS. 

of  said  duties  of  such  officer  or  person,  so  suspended  or  removed, 
by  the  detail  of  some  competent  officer  or  soldier  of  the  army,  or 
by  the  appointment  of  some  other  person  to  perform  the  same,  and 
to  fill  vacancies  occasioned  by  death,  resignation,  or  otherwise." 

Thus  provision  was  made  for  carrying  on  the  civil  government 
for  the  execution  of  the  laws  of  each  of  said  States  relating  to  rights 
of  person  and  property  as  pertaining  to  civil  injuries. 

In  regard  to  public  wrongs  or  criminal  offenses  it  was  provided 
that  the  district  commander  "may  allow  civil  tribunals  to  take 
jurisdiction  of  and  to  try  offenders,  or,  when  in  his  judgment  it 
may  be  necessary  for  the  trial  of  offenders,  he  shall  have  power  to 
organize  military  commissions  or  tribunals  for  that  purpose;  and 
all  interference  under  color  of  State  authority  with  the  exercise  of 
military  authority  under  the  act  shall  be  null  and  void." 

"AH  persons  put  under  military  arrest  by  virtue  of  this  act  shall 
be  tried  without  unnecessary  delay,  and  no  cruel  or  unusual 
punishment  shall  be  inflicted,  and  no  sentence  of  any  military 
commission  or  tribunal  hereby  authorized,  affecting  the  life  or 
liberty  of  any  person  shall  be  executed  until  it  is  approved  by  the 
officer  in  command  of  the  district,  and  the  laws  and  regulations 
for  the  government  of  the  army  shall  not  be  affected  by  this  act, 
except  so  far  as  they  conflict  with  its  provisions:  Provided,  no 
sentence  of  death  under  the  provision  of  this  act  shall  be  carried 
into  effect  without  the  approval  of  the  President." 

Further  it  was  provided  that  "no  district  commander,  or  member 
of  the  board  of  registration,  or  any  of  the  officers  or  appointees 
acting  under  them  shall  be  bound  in  his  action  by  the  opinion  of 
any  civil  officer  of  the  United  States." 

Under  these  provisions  criminal  offenders  might  be  tried  in  the 
courts  of  the  State,  except  when  the  jurisdiction  was  assumed  to 
try  them  by  military  commissions  or  tribunals,  and  when  jurisdic- 
tion was  assumed  by  the  military,  it  was  not  subject  to  any 
control  by  the  courts  either  of  the  State,  or  of  the  United 
States. 

Its  power  was  made  supreme,  subject  only  to  th€  district  com- 
mander, and  the  President. 

The  supreme,  district,  and  other  courts  were  held  for  the  trial  of 
both  civil  and  criminal  cases  at  the  times  and  places  when  and 
where  they  were  previously  held  during  the  administration  of  Gov. 
Throckmorton. 

The  supreme  courts  were  held  by  a  chief  justice  and  four 
justices,  as  prescribed  in  the  Constitution  of  1866,  and  were 
appointed,  originally  and  from  time  to  time  as  vacancies  occurred, 
by  the  general  commanding  the  district  composed  of  Louisiana  and 
Texas. 

A  very  good  view  of  the  condition  of  Texas  in  regard  to  the  work 
of  the  judiciary,  and  its  effect  upon  the  country  during  the  recon- 


OUR    FEDERAL    RELATIONS.  II9 

struction  period,  may  be  inferred  from  a  statement  of  G.W.  Paschal, 
upon  his  return  from  Washington,  where  he  had  spent  some  time 
on  business  after  the  war. 

Having  been  appointed  reporter  of  the  supreme  court  he  states, 
in  his  preface  to  the  31st  volume  of  Texas  Reports:  "When  I  re- 
turned to  my  home  in  186S,  I  found  the  convention  in  session,  the 
whole  country  under  military  rule,  the  business  of  the  courts  well 
nigh  suspended,  three  members  of  the  supreme  court  serving  in  the 
constitutional  convention,  the  people  in  utter  confusion  as  to  the 
landmarks  of  liberty,  the  great  mass  of  the  legal  profession  entirely 
in  the  dark  as  to  what  had  been  the  decisions  for  several  years, 
and,  under  the  cry  of  ab  initio,  there  was  still  greater  uncertainty 
as  to  what  Constitution  and  statute  laws  the  people  were  living 
under."  The  reference  here  made  to  ab  initio  was  the  effort  being 
made  in  the  convention  to  declare  to  be  null  and  void  all  of 
the  acts  of  the  State  government  during  the  war  after'the  date  of 
secession. 

During  the  administration  of  Gov.  Throckmorton  the  legislature 
passed  an  act,  entitled  "An  Act  Regulating  Contracts  for  Labor," 
approved  November  i,  tS66,  the  object  of  which  doubtless  was  to 
make  available  and  give  permanence  to  the  labor  of  negroes, 
who  might  enter  into  contracts  with  their  employers. 

This  act  was  annulled  by  the  order  of  the  general  in  command 
of  the  district,  which  act  of  assumed  authority  of  the  military  over 
the  civil  authority  in  the  State  was  in  January,  1S67,  reported  to 
President  Johnson  by  the  representatives  elect  of  Texas  then  in 
Washington.  No  further  action  was  taken,  and  the  law  was  never 
enforced. 

Shortly  previous  to  this,  the  said  representatives  had  presented 
to  the  President  a  representation  and  protest  of  Gov.  Throckmorton 
in  relation  to  some  outrages  in  Texas  committed  by  the  officers 
and  soldiers  of  the  army.  What  was  done  about  it  was  never  heard 
of  afterwards.  Preident  Johnson  was  evidently  anxious  to  prevent 
the  military  authority  from  interference  with  the  civil  authority, 
and  from  infringing  upon  the  rights  of  the  citizens,  but  it  was 
equally  evident  that  he  was  powerless,  while  Mr.  Stanton  was 
secretary  of  war,  backed  by  General  Grant  commander  in  chief 
of  the   army. 

During  the  existence  of  the  military  government  in  Texas,  the 
subject  of  the  most  extensive  annoyance  to  the  people  was  the 
establishment  and  action  of  the  tribunal  called  the  "Freedmen's 
Bureau."  The  position  of  "Agent  of  the  Bureau"  was  generally  a 
lieutenant  or  sergeant  of  the  army,  aided  and  supported  by  a  squad 
or  company  of  soldiers.  It  was  located  in  nearly  every  county- 
seat  of  the  counties  in  the  State  wherein  there  were  any  consider- 
able number  of  negroes.  It  was  purely  military  in  its  operations, 
and  had  no  connection  with,  and  under  no  supervision  of  any  civil 


I20  OUR    FEDERAL    RELATIONS. 

authority,  although  judges  in  all  of  the  courts  were  appointed  by 
the  general  in  command.  There  was  no  appeal  from  its  action. 
Its  object  was  to  protect  the  negroes  by  redressing  all  petty  injuries 
of  a  civil  or  criminal  nature  committed  upon  them  by  white  persons, 
but  not  to  redress  any  injuries  committed  by  negroes  upon  the 
rights  of  white  persons.  Its  judge  to  determine  cases  was  the  agent 
of  the  Bureau,  and  its  ministerial  officers  were  the  attending 
soldiers. 

The  rule  of  decision  was  the  judgment  or  discretion  of  the  agent. 
The  punishment  was  fine  or  imprisonment, — one  or  both.  The 
negroes  ran  to  these  tribunals  upon  the  occurrence  of  every  real  or 
imagined  infringement  of  their  rights,  and  upon  white  persons  be- 
ing arrested  upon  their  charges,  the  trial  was  prompt  and  summa- 
ry, according  to  the  humor,  prejudice,  or  discretion  of  the  agent 
acting  as  judge.  Where  the  agents  were  active  in  the  discharge 
of  their  duties,  the  people  who  had  anything  to  do  with  negroes 
were  in  constant  danger  of  being  taken  before  this  extraordinary 
tribunal. 

In  some  places,  however,  the  agents  soon  found  that  the  com- 
plaints were  generally  frivolous  or  prompted  by  bad  motives, 
and  directed  their  efforts  to  making  the  negroes  as  well  as  the 
whites  behave  themselves.  This  kind  of  arbitrary  proceeding  in 
favor  of  the  negro,  had  a  powerful  influence  in  encouraging  them 
to  assert  their  equality  with  the  whites,  and  their  mode  of  mani- 
festing it  often  assumed  a  superiority  over  the  whites,  that  pro- 
duced irritations  and  disturbances.  For  instance,  in  passing 
white  persons  on  the  sidewalks,  streets  or  roads,  they  would,  to 
show  their  equality,  fail  to  divide  the  space  in  passing,  as  white 
people  ordinarily  do.  This  same  thing  occurred  in  many  other 
ways,  wherever  negroes  came  in  contact  with  white  people  in  pub- 
lic places. 

Notwithstanding  the  influences  continually  operating  to  produce 
antagonism  between  the  races,  there  were  some  things  settled  be- 
tween them  relating  to  their  intercourse.  The  whites  conceded 
equality  before  the  law.  The  blacks  conceded  their  inequality  at 
the  white  man's  home,  which  prevented  their  attempting  to  force 
a  social  intercourse  with  the  whites.  The  point  not  settled  was 
the  equality  of  the  two  races,  when  they  met,  or  were  together  in 
public  places.  Upon  this  point  the  antagonism  was  so  extreme  as 
to  engender  almost  continual  disturbances,  resulting  in  quarrels, 
abuse,  and  physical  conflict.  It  had  increased  from  the  time  the 
negroes  were  set  free  until  the  spring  of  1868,  when  there  prevailed, 
in  many  parts,  a  most  intense  apprehension  of  a  hostile  outbreak 
between  the  two  races.  Both  races  had  arms  and  ammunition  for 
defense.  White  women  were  afraid  for  their  husbands  to  leave 
home  at  night.  The  matter  was  not  openly  discussed.  It  was  an 
oppressive  dread,  that  was  felt  rather  than  spoken.     Just  then  the 


OUR    FEDERAL    RELATIONS.  121 

Kuklux  appeared.  No  notice  of  its  coming  was  heralded.  As  to 
most  persons,  it  was  like  some  strange  thing,  that  had  suddenly 
arisen  out  of  the  ground.  In  a  village  in  Eastern  Texas,  about 
ten  o'clock  at  night,  the  profound  silence  of  the  place  was  broken 
by  the  loud  sound  of  a  drum  being  beat  in  the  graveyard  at  the 
edge  of  the  village.  The  sound  at  such  a  time,  and  in  such  a 
place,  aroused  the  attention  of  the  citizens.  Very  soon  there 
emerged  from  the  graveyard  a  company  on  horse  back, — ghost 
horses,  and  ghost  riders  in  appearance,  —and  marched  in  military 
array  through  the  streets,  performing  accurately  the  maneuvres  of 
soldiers,  in  silence  only  occasionally  broken  by  low  gutteral  tones 
of  voice.  People  looked  out  of  their  doors  and  windows  at  the 
strange  sight, — horses  draped  in  white,  robes  with  white  flowing 
shrowds  and  high  caps  on  them.  The  negroes  out  visiting  fled  to 
their  homes,  and  when  intercepted  by  the  march,  took  refuge 
under  the  houses,  from  which  they  escaped  only  after  broad  day- 
light the  next  morning.  One  house,  where  it  was  known  there 
were  negroes,  was  surrounded,  when  two  or  three  of  the  riders  dis- 
mounted, and  calling  a  negro  man  out  to  the  well,  set  him  to 
drawing  water.  One  of  the  riders,  standing  on  the  opposite  side 
of  the  well,  drank  (or  appeared  to  the  negro  to  drink)  three  buck- 
ets of  water,  mumbling  out  a  complaint  of  being  very  thirsty,  not 
having  had  a  good  drink  since  the  battle  at  Mansfield.  This 
marching  was  kept  up  night  after  night,  and  was  extended  on  the 
roads  into  the  country,  where  it  was  known  there  were  negroes. 
From  the  first  ghost  march  from  the  grave  yard,  the  point  of  con- 
tention between  the  races  was  settled.  Every  negro,  man,  woman 
or  child,  that  met  a  white  man  or  woman,  divided,  or  gave  the 
whole  of  the  sidewalk,  street  or  road,  and  the  salutation  of  the  old 
negroes  was  "good  morning,  massa,"  touching  or  lifting  his  hat 
gracefully.  The  negroes  knew  very  soon  that  it  was  white  men 
that  were  doing  this,  still  the  ghost-like  appearance,  and  the  mili- 
tary display  of  such  large  companies,  confounded  and  overawed 
them.  It  struck  them  all  over  on  their  weak  points, — their  super- 
stition, and  their  innate  sense  of  inferiority  to  white  people,  when 
brought  in  contact  with  them. 

At  that  time  there  was  a  squad  of  fifteen  or  twenty  soldiers,  un- 
der a  sergeant,  stationed  in  the  village.  When  the  marches  took 
place,  they  did  not  show  their  heads  out  of  their  (juarters. 

The  Kuklux  occasionally  committed  some  acts  of  violence,  but 
it  was  more  pretended  than  real,  for  their  object  was  to  scare,  and 
not  to  hurt  the  negroes. 

As  soon  as  its  object  was  accomplished,  it  disappeared  as  sud- 
denly as  it  appeared  at  first. 

It  was  a  thing  of  the  past  for  more  than  a  year  before  the  halls 
of  Congress  were  in  tribulation  about  it.  How  it  was  conceived, 
started,  and  spread,  was   a   sealed   secret  to  most  persons,  and  es- 


122  OUR    FEDERAL    RELATIONS. 

pecially  those  prominent  men,  who  had  been  in  the  habit  of  lead- 
ing in  public  affairs.  It  was  a  ground  swell,  instinctively  directed 
to  avert  an  impending  catastrophy, — an  internecine  struggle  be- 
tween the  two  races,  which  was  then  upon  the  point  of  breaking 
out.  It  was  learned  afterwards  that  it  was  started  in  Paduka,  and 
spread  like  wild-fire  over  the  Southern  States. 

Although  the  tribunal  of  the  Freedman's  Bureau  was  in  full  and 
active  operation  during  the  time  the  Kuklux  were  in  service,  no 
actions  of  theirs  in  regard  to  the  negroes  were  ever  brought  before 
it,  so  far  as  heard  from.  Nor  were  there  any  prosecutions  in  the 
courts  arising  out  of  their  conduct.  This  is  sufficient  to  show 
what  were  the  enormities  of  the  Kuklux  (about  which  Congress 
was  afterwards  so  greviously  exercised)  that  were  made  to  grow 
into  frightful  proportions,  as  the  news  of  them  traveled  to  the 
North. 

Under  the  authority  given  by  the  reconstruction  laws,  as  pre- 
viously quoted,  military  commissions  were  instituted  for  the  trial 
of  persons  charged  with  felonies.     Two  of  them  were  held  in  the 
town  of  Jefferson,  Texas,  in    1869.     The  court  was  composed  of 
officers  in  the  army,  with  a  presiding  officer,  arid  a  judge  advocate, 
as  prosecutor,  and  was  conducted  very  much  like  a  regular  court 
martial  in  the  army.  The  prosecution  was  by  written  charges,  and 
specifications   under   them.     The  evidence   of  the   witnesses  was 
written  out,  after  being  taken  down  in  shorthand  as  the  case  pro- 
gressed.    Every  word  uttered  by  the  court,  the  judge  advocate,  the 
lawyers,  and  the  witnesses,  was  thus  made  a  part  of  the  record  in 
the  case,  except  the  addresses  of  the  counsel,  permitted  to  be  made 
in  writing   and   read  to   the  commission,  after   the  evidence  was 
closed.     There  was  then  stationed  at  Jefferson  a  body  ot  troops, 
perhaps  a  regiment  or  more,  in  command  of  a  brigadier  general. 
The  general,  upon  such  information  as  was  satisfactory  to  himself, 
ordered  the  arrest  of  the  persons  to  be  tried.     The  order  was  exe- 
cuted by  officers  and  soldiers  in  his  command.     Upon  the  arrest, 
no  order  or  charge  was  shown  to  the  party  arrested,  and  the  cause 
and  Its  nature  could  only  be  surmised  before  the  party  was  brought 
to  trial.     For  safe  keeping,  the  parties  arrested  were  confined  in 
the  stockade,  until  discharged,  either  on  bail,  or  after  trial.      The 
stockade  was  a  structure   about   one   hundred  feet   long  and  fifty 
feet  wide,  located  in  an  open  space,  not  surrounded  by  trees  or 
houses.     It  was  constructed  by  setting  upon  end  logs  about  ten 
feet  high,  close  together,  at  the  four  sides,  and  placing  on  top  of 
them  a  narrow  platform,  for  the  walk  of  the  soldier-guards,  mus- 
ket in  hand,  with  orders  not  to  allow  the  prisoners  to  approach  the 
wall  thus  made,  under  pain  of  being  shot.     Inside  of  this  wall  was 
a  double  row  of  cells,  placed  near  the  middle  of  the  longer  way  of 
the  enclosure,  in  which  the  prisoners  were  locked  up  at  night.     In 
the   daytime  they   were  allowed   to    shelter  themselves  from   the 


OUR    FEDERAL    RELATIONS.  1 23 

hot  sun  of  summer,  as  well  as  they  could,  under  the  shadow  of 
these  low  cells  or  withir.  them,  with  scarcely  a  breath  of  air  circu- 
lating amongst  them.  At  four  o'clock  in  the  evening,  when  some 
of  them  were  brought  out  to  see  their  counsel,  relations  or  friends, 
their  clothes  were  as  wet  as  if  they  had  come  out  of  the  Cypress 
Bayou  near  by. 

In  the  first  one  of  the  cases  referred  to,  there  were  twenty-one 
persons,  including  some  leading  citizens  of  Jefferson,  charged  with 
murder,  in  a  homicide  in  that  town  bya  mob.  The  trial  occupied 
several  months,  and  excited  great  interest  there  and  elsewhere. 
There  were  distinguished  lawyers  engaged  in  the  defense,  to-wit: 
D.  B.  Culberson,  Reuben  Reaves,  William  Wright,  and  Campbell 
(now  recollected).  It  was  managed  with  an  ability  corresponding 
with  the  difficulty  and  importance  of  the  case. 

It  could  not  be  denied  that  there  had  been  a  mob  of  exasperated 
citizens,  and  that  a  man  was  killed  by  them.  There  were  many, 
perhaps  over  a  hundred,  witnesses  examined  for  the  prosecution 
and  the  defense.  The  difficulty  may  be  imagined,  in  conducting 
the  defense,  when  it  is  considered  that  a  witness,  that  would  clear 
one  of  the  prisoners  by  proving  an  alibi,  might  implicate  another 
one.  Therefore,  witnesses  only  should  be  put  on  the  stand  for  de- 
fense, whose  evidence  would  be  in  favor  of  one  or  more,  and  not 
against  the  others.  There  were  six  of  them  sentenced  to  the  pen- 
itentiary, where  they  did  not  remain  long  before  they  were  pardon- 
ed out  by  the  President.  It  was  said  that  the  sentence  was  a  sur- 
prise to  the  attorneys,  because  some  of  those  found  guilty  had  less 
evidence  against  them  than  others,  who  were  acquitted.  During 
the  trial,  one  of  the  officers  on  the  commission  openly  manifested 
an  inveterate  prejudice  against  the  prisoners.  .It  was  so  plain  that 
the  others  could  not  help  seeing  it. 

Upon  the  opening  of  court  one  morning,  Col. Campbell 

arose,  paper  in  hand,  and  asked  that  he  might  read  it  to  the  court 
on  behalf  of  himself  and  associates,  acting  for  their  clients,  the 
prisoners  at  the  bar.  Permission  was  granted,  and  he  read  it  with 
a  deliberate  and  respectful  tone  of  voice,  clear  and  strong. 

It  was  a  charge  of  manifest  and  undue  prejudice  by  one  of  the 
judges  against  the  prisoners,  and  a  request  that  he  be  recused  as 
one  of  the  judges  in  the  trial  of  the  case.  Before  he  proceeded  far 
in  the  reading,  the  judge  indicated  abruptly  left  the  body  of  the 
court,  and  retired  to  the  rear. 

To  one  present,  considering  the  surrounding  circumstances  of 
the  occasion,  the  boldness  of  the  attempt,  the  splendid  style  of  the 
production,  and  its  manly  delivery  in  the  reading,  the  profound  in- 
terest in  the  issue  by  all  present,  and  the  respectful  attention  of  the 
officers — the  judges — it  presented  a  grand  display  of  the  indepen- 
dent assertion  of  just  rights—  a  scene  never  to  be  forgotten. 

The  officer  recused  never  sat   on   the   commission  again.     He 


1^4  OUR    FEDERAL    RELATIONS. 

was  a  rude,  vigorous  old  man,  who  had  risen  from  the  ranks  by  his 
courage  and  long  service,  and  most  of  the  others  were  polished 
gentlemen,  who  were  disposed  to  give  the  prisoners  a  fair  trial.  It 
was  strongly  suspected  that  they  had  been  consulted,  or  had  given 
such  intimations  as  encouraged  the  making  the  effort  to  recuse  the 
rude  old  officer. 

The  other  case  referred  to  was  the  prosecution  of  four  men  for 
an  assault  with  intent  to  murder  three  soldiers,  in  the  court  house 
at  Tyler,  Smith  county.  They  were  shot  by  several  persons  while 
acting  as  a  guard  for  the  agent  of  the  Freedmen's  Bureau  at  the 
end  of  the  trial  of  a  young  man,  who  had  stricken  a  negro  for  hav- 
ing rushed  up  against  a  young  lady  with  whom  he  was  walking  the 
evening  before. 

As  there  were  several  persons  concerned  in  the  shooting,  the  ef- 
fort of  the  prosecution  was  to  show  that  it  was  a  conspiracy  to  kill 
the  agent  and  the  soldiers.  Immediately  after  their  arrest  the  at- 
torneys, in  talking  with  the  General,  discovered  what  was  intended 
to  be  charged  against  them,  and  at  once  took  steps  to  rebut  the 
conspiracy,  and  to  show  that  it  was,  as  to  three  of  the  four  prison- 
ers at  least,  a  sudden  and  unexpected  difficulty,  in  which  they 
were  not  criminally  concerned.  That  precaution  reduced  the  case 
on  trial  to  simply  an  assault  with  intent  to  murder.  The  counsel 
for  the  defendants  were  Reuben  Reaves  (who  was  taken  sick  and 
,  so  remained  after  the  fourth  day  of  the  trial).  Gen.  J.  H.  Rogers, 
Frank  Hays,  and  O.  M.  Roberts.  The  trial  lasted  four  weeks. 
Over  fifty  witnesses  were  brought  from  a  distance,  mostly  from 
Tyler.  There  were  many  thrilling  incidents  during  the  trial.  The 
judge  advocate  was  aided  by  the  Bureau  agent,  who  was  a  bold, 
fearless  man,  who  evidently  had  experience  in  petty  trials  in 
courts,  and  was  bent  upon  making  out  a  case  by  any  means,  fair  or 
foul,  that  he  could  use. 

His  instruments  were  mainly  the  negro  witnesse?,  who  told  what 
they  saw  and  heard  about  the  difficulty  in  a  way  that  destroyed 
most  of  their  evidence.  He  brought  with  him  from  Tyler  a  young 
white  girl  (at  least  that  was  her  complexion),  as  a  witness,  who  was 
taken  out  of  a  bawdy  house.  She  swore  to  a  transparent  false- 
hood, and  on  cross-examination  admitted  that  she  was  born  a 
slave  of  African  descent.  After  the  evidence  was  closed,  written 
arguments  were  read  by  the  attorneys.  The  court  rendered  no 
opinion,  that  was  made  known,  but  three  prisoners  were  discharged 
on  the  bail  bonds,  that  had  been  given  before  the  trial,  and  noth- 
ing further  was  ever  heard  as  to  the   determination  in  their  cases. 

The  other  prisoner  was  retained  in  custody  until  the  State  gov- 
ernment was  organized,  when  he  was  turned  over  to  the  civil  au- 
thority, and  that  was  the  end  of  the  matter.  It  is  but  just  to  the 
members  of  the  commission  to  state  that  they  were  liberal  and  in- 
dulgent to  counsel  in  their  efforts   to  develop   the  case,   and  after 


OUR    FEDERAL    RELATIONS,  125 

hearing  the  arguments  of  counsel,  expressed  privately  their  gratifi- 
cation at  the  course  pursued  on  the  trial  by  the  counsel,  as  well  as 
by  the  court. 

There  was  a  subject  which,  to  counsel  and  parties  engaged  in 
these  trials,  was  oppressively  painful,  rarely  experienced  in  ordi- 
nary criminal  courts.  The  members  of  the  commission  were  known 
to  be  military  officers,  not  lawyers.  There  was  a  continual  uncer- 
tainty resting  on  the  mind  as  to  whether  or  not  they  could  be  made 
to  understand  the  principles  of  law,  and  mode  of  proceeding  for  a 
proper  adjudication  of  the  case.  In  addition  to  that;  if  they 
should  err  in  either  respect,  or  in  their  final  judgment,  there  was 
no  appeal  to  another  court,  that  may  be  better  informed  on  the 
subject.  There  may  also  be  an  apprehension  that  the  result  of  the 
case  may  be  influenced  by  a  military  policy,  unknown  in  the  ordi- 
nary criminal  courts. 

There  were  other  commissions  in  Texas,  but  the  instances  given 
will  illustrate  them  sufficiently.  They  were  professedly  resorted 
to  as  a  mode  of  trying  criminal  offenses  that  occurred  in  such  lo- 
calities and  under  such  circumstances  as  to  induce  the  belief,  that 
the  ordinary  criminal  courts  of  the  State  would  not  be  competent 
to  inflict  the  proper  punishments  upon  such  persons  as  were  at- 
tempted to  be  prosecuted  in  them.  Nor  was  this  belief  entirely  un- 
founded; for  the  population  of  Texas  was  then  divided  into  two 
distinct  classes.  One  class  was  composed  of  the  military  officers, 
from  the  highest  to  the  lowest  in  rank  in  the  district,  the  agents  of 
the  Preedman's  Bureau  scattered  over  the  country,  the  military 
commissions,  the  judges  of  the  different  courts  and  the  ministerial 
officers  appointed  by  the  military  commander,  and  subject  to  be 
removed  by  him,  the  jurors  in  the  courts  being  only  those  persons 
who  could  take  the  'iron  clad"  oath,  the  negroes  as  a  body,  and 
the  few  Southern  loyalists — white  men.  This  included  those  per- 
sons, who  governed,  and  those  who  were  the  special  objects  of  pro- 
tection l;)y  the  government,  as  it  was  then  carried  on. 

The  other  class  consisted  of  the  great  body  of  white  people,  in- 
cluding the  men  of  personal  influence,  of  high  standing,  and  of  the 
property  owners  in  the  State,  who  had  either  participated  in,  or 
sympathized  with  the  Southern  struggle  for  separate  independence. 

It  was  the  case  of  the  military  government,  with  such  instru- 
ments and  adjuncts,  against  the  great  mass  of  the  white  people. 
The  mass  of  white  people  were  not  in  favor  of  such  a  government, 
stood  aloof  from  any  participation  in  aid  of  it,  and  sought  general- 
ly to  have  nothing  to  do  with  it.  When  outrages  were  committed, 
caused  by  the  provocations,  antagonisms,  and  arbitrary  rule,  that 
then  existed,  those  persons  not  concerned  in  them,  simply  stood 
off,  looked  on  as  unconcerned  spectators,  and  let  the  government 
redress  the  wrongs  if  it  could,  with  its  organized  instrumentalities. 

For  instance,  in  northeastern  Texas,  there  was  a  small  crowd  of 


126  OUR    FEDERAL    RELATIONS. 

desperate  men  headed  by  a  man  by  the  name  of  Baker,  who  com- 
mitted some  depredations  upon  the  soldiers,  negroes  and  others  of 
that  class,  and  another  small  crowd  in  northern  Texas  headed  by 
a  man  named  Biggerstaff,  did  the  same  for  a  short  time.  As  in  the 
mob  at  Jefferson,  the  difficulty  at  Tyler,  and  the  action  of  the  Ku- 
klux,  the  mass  of  respectable  white  people,  that  were  cognizant  of 
the  origin  of  those  things,  knew  that  they  arose  directly  or  indirect- 
ly out  of  the  tyranny  of  the  officers,  or  the  bad  conduct  of  the 
negroes,  or  of  some  of  their  class-adherents,  they  did  not  feel  it  to 
be  incumbent  on  them  to  rush  out  voluntarily  in  aid  of  the  gov- 
erning authorities,  that  had,  without  their  consent,  been  placed 
over  them.  Upon  the  occasion  of  the  difficulty  at  Tyler,  wherein 
three  soldiers  were  shot  by  a  little  crowd,  the  district  judge  got  on 
his  horse  and  fled  out  of  the  town,  and  all  the  rest  of  the  civil  offi- 
cers sought  places  of  safety,  and  left  the  Bureau  agent  with  his 
squad  of  soldiers  to  disperse  the  little  crowd  that  shot,  and  not  one 
of  them  were  ever  arrested  and  tried  in  the  courts  on  indictnjents. 
The  military  officers,  and  the  established  courts  not  having  either 
the  moral  or  physical  support  of  the  mass  of  the  white  people  were 
powerless  to  redress  the  wrongs  that  were  committed.  The  most  that 
that  they  could  do  was  to  report  exaggerated  and  ex  parte  accounts 
of  the  occurrences  to  the  provisional  governor,  and  military  com- 
mander at  Austin,  who,  not  understanding  the  causes  which  led  to 
these  disturbances,  nor  their  narrow  local  extent,  ignorantly  and 
falsely  attributed  them  to  a  general  spirit  of  disloyalty  pervading 
the  State,  as  may  be  seen  in  their  reports  of  the  condition  of  the 
country  to  the  reconstruction  convention  in  1869. 

Soon  after  the  close  of  hostilities  Judge  Duval,  having  returned 

from  his  visit  to  Washington  during  a  part   of  the  war,    held   the 

federal  courts  in  what  was  (strangely)  called  the  Western   District 

of  Texas  at  Tyler,  Austin  and  Brownsville.     At  the  first  session   at 

Tyler  the  lawyers  came  into  court  to  look  after  the  cases,  that  had 

laid  over,  as  well  as  the  new  cases  brought.     The  jurors,  for  the 

grand  and  petit  juries,  were   assembled   in    court  on    their   seats. 

Such  a  body  of  men  ! — Who  are  they,  and  where  were  they  found? 

were  the  whispered  inquires  of  the  old  lawyers,   that  had  formerly 

attiinded  the  court.     But  they  could  all  take  the  "iron  clad"  oath, 

and  therefore  were  good  jurors  for  that  court.     That  court  was  held 

there  regularly  from    that    time.     Civil    business    was    transacted 

much  in  the  usual  way.     No  criminal  cases   of  magnitude    were 

prosecuted  in  it.     The  cases  most  affecting   the   people    were    the 

prosecutions  for  violations  of  the  internal  revenue  laws  pertaining 

to  the  sale  of  liquors,  cigars  and  tobacco,  about  which  vendors  of 

those  articles  were  at  first  very    little    informed^     Spies    were  sent 

out,  by  whose  order  is  unknown,  to    find    out   the  violations,   and 

prosecutions  were  based  on  their    evidence.     At    one    time    there 

were  seen  defendants  in  attendance  on  that  court   from    numerous 


OUR    FEDERAL    RELATIONS.  I27 

counties  extending  from  Hill  county  in  the  west  to  Shelby  county 
in  the  east.  Bnt  the  officers  were  very  accomodating.  If  a  defend- 
ant,'who  was  indicted  for  several  violations,  would  confess  guilty 
of  the  lighter  offense  he  could  get  off  with  fine  and  cost,  amounting 
from  sixty  five  to  eighty  dollars.  If  on  the  other  hand  he  was  dis- 
posed to  defend  the  case,  he  would  soon  find  that  he  might  not 
get  a  trial  at  that  term  of  the  court,  and  rather  than  come  back  to 
the  next  term  of  the  court,  he  would  generally  confess  and  pay  out. 
It  was  a  profitable  court  to  the  officers.  And  indeed  it  is  but  just 
to  say,  that  the  officers  did  not  manifest  a  disposition  to  oppress 
defendants  as  much  as  they  had  the  power  to  do,  in  prosecuting 
the  criminal  cases. 

Many  other  matters  pertaining  the  action  of  the  government  and 
the  conduct,  and  treatment  of  the  people  of  the  State,  in  other 
parts  of  the  State,  were  reported  in  the  papers,  and  heard  of  other- 
wise, similar  to  those  which  have  been  detailed.  As  stated  before, 
it  was  thought  that  a  better  idea  concerning  the  condition  of  the 
country  could  be  conveyed  by  a  representation  of  facts,  known  or 
believed  to  be  authentic,  as  samples  of  what  occured,  or  was  like- 
ly to  occur  at  other  times  and  places,  than  to  attempt  a  more 
general,  and  therefore  less  specific  view  of  the  subject. 

Amidst  all  the  evils  of  such  a  government,  if  there  was  one  benefit 
that  was  confered  upon  the  mass  of  the  Texas  people,  it  was  in 
teaching  them  the  glorious  blessing  of  living  in  a  well  regulated 
civil  government  of  their  own  choice  and  creation. 

The  government,  that  had  been  placed  over  them  from  1865  to 
1870,  wds  not  the  government  of  Texas  by  its  own  people  (except 
during  the  year  of  Gov.  Throckmortons  administratiation),  but 
the  government  of  the  United  State,  absolute,  and  military  in 
character,  placed  over  the  people  in  the  territory  of  Texas,  or  in 
other  words,  it  was  our  federal  relations  being  restored,  through 
the  agonizing  process  of  a  military  despotism,  enforced  by  the 
power  of  the  United  States  over  a  disarmed  and  prostrate  people, 
long  after  hostilities  had  ceased, — a  revolution  completed  in  a 
time  of  peace. 


128  OUR    FEDERAL    RELATIONS. 


CONSTITUTIONAL  GOVERNMENT. 


The  DANGER  TO  GOVERNMENTS,  FOUNDED  ON  WRITTEN  CONSTITU- 
TIONS, OF  BEING  GRADUALLY  REVOLUTIONIZED  BY  THE  CONSTRUC- 
TION PLACED  UPON  THE  PROVISIONS  OF  THE  CONSTITUTIONS  BY 
THOSE  WHO  ADMINISTER  THE  GOVERNMENTS. 


[Public  Lecture  in  the  Texas  University.] 

This  may  be  done  by  enlarging  and  extending  "the  powers  con- 
ferred by  a  liberal  construction,  based  upon  the  supposed  reason 
and  spirit  of  its  provisions,  so  as  to  meet  emergencies  not  antici- 
pated and  specifically  provided  for; — by  using  the  powers  granted 
in  such  a  manner  as  to  accomplish  objects  incidentally,  which 
were  not  embraced  in  the  Constitution,  and  could  not,  therefore, 
be  accomplished  by  direct  action,  and  by  not  understanding  the 
true  meaning  of  its  provisions,  as  they  were  designed  to  be  under- 
stood by  those  who  framed  and  adopted  it,  and  thereby  assuming 
powers  never  intended  to  have  been  granted. 

The  government  of  the  United  States  has  grown  to  gigantic  pro- 
portions, reaching  out  in  all  directions. 

The  diversified  objects  to  which  its  action  is  now  devoted,  would 
seem  to  justity  the  conclusion  that  its  chief  business  is  to  pro- 
mote the  private  pecuniary  interests  of  persons,  of  classes  of  per- 
sons, and  of  corporations.  Its  greatest  internal  struggles  are  made, 
in  its  efforts  to  adjust  and  distribute  its  favors,  both  direct  and  in- 
direct. The  necessary  result  of  this  has  been  to  facilitate  the 
amassing  capital  in  favored  pursuits,  which  will  inevitably  engen- 
der the  conflict  between  capital  and  organized  labor.  When  that 
conflict  reaches  a  crisis,  and  is  settled,  as  it  must  be,  then  it  may 
well  be  feared  that  our  republican  institutions  will  be  changed, 
with  a  tendency  either  to  anarchy  or  despotism,  as  the  one  or  the 
other  may  be  dominant. 

Now  the  question  is,  did  this  direction,  which  has  been  given  to 
the  operations  of  the  government,  depend  upon  a  proper  construc- 
tion of  the  provisions  of  the  Constitution,  in  their  application  to 
occurring  events  from  time  to  time,  or  did  it  result  from  such  con- 
structions as  have  been  mentioned,  as  being  calculated  to  produce 


OUR    FEDERAL    RELATIONS, 


129 


the  change  in  the  government  from  its  original  design,  as  prescrib- 
ed in  the  Constitution? 

This  result,  in  the  objects  to  which  its  action  is  devoted,  has 
been  reached  by  a  long  series  of  measures,  embracing  the  highest 
and  most  extensive  powers  of  government.  It  has  acquired  addi- 
tional territory,  and  largely  extended  its  dominion,  by  conquest, 
and  also  by  purchase,  with  money  raised  by  transaction.  It  has 
furnished  the  people  with  a  paper  currency,  by  chartering  banks, 
and  by  issuing  treasury  notes,  and  gold  and  silver  certificates.  It 
has  furnished  the  people  with  inland  transportation  by  the  charter 
of  and  bounty  to  railroad  companies.  It  has  extended  the  field  of 
commercial  operation  for  the  benefit  of  merchants,  by  bounties  in 
money  given  to  ship  lines.  It  has  given  ship  builders  a  bounty  in- 
directly, in  the  monopoly  given  to  them  in  furnishing  vessels  for 
the  coast-wise  trade.  It  has  given  a  bounty  in  money  to  fisher 
men  for  exporting  salted  fish.  It  has  caused  a  fish  commission  to 
breed  and  distribute  fish  of  good  quality  throughout  the  country  to 
supply  the  people  with  more  abundant  and  cheaper  food. 

It  gives  a  bounty  by  indirect  protection  to  manufacturers,  which 
is  professedly  intended  to  benefit  the  laborers  employed,  as  well 
as  the  capitalists,  who  engage  in  manufacture.  It  gives  a  bounty 
by  indirect  protection  to  wool-growers  and  sugar  planters.  It  has 
an  educational  bureau  to  promote  the  education  of  the  people.  It 
has  a  farming  department  to  aid  the  farmers,  horticulturists  and 
orchardists.  It  is  promoting  the  interests  of  stockmen,  by  em- 
ploying veterinary  surgeons  to  find  out  the  causes  of  the  diseases 
that  kill  their  cattle  and  hogs.  It  applies  money  raised  by  taxa- 
tion to  give  relief  to  sufferers  from  overflows  of  rivers,  and  epi- 
demics within  the  States,  and  to  establish  quarantines  to  prevent 
epidemics  from  entering  the  country,  by  which  the  lives  of  the 
people  will  be  endangered  or  destroyed.  It  promotes  the  intelli- 
gence, literary  and  scientific  knowledge,  and  industrial  skill  of  the 
people,  by  appropriating  money  in  aid  of  great  fairs,  exhibited 
both  at  home  and  abroad.  Nor  has  it  been  neglectful  of  the  good 
morals  and  habits  of  the  people,  for  it  has  taxed  whiskey  and  to- 
bacco an  amount  two  or  three  times  their  merchantable  values,  to 
discourage  the  use  of  them.  It  gives  pensions  to  persons  after 
their  services  have  terminated,  both  in  the  military  and  civil  de- 
partments, and  (to  their  widows  also)  without  that  compensation 
for  the  services  rendered  having  been  embraced  in  the  contract  of 
employment.  Diamonds  and  some  other  tasteful  objects  are  al- 
lowed to  be  imported  under  a  comparatively  low  tariff,  for  the  pur- 
pose, as  it  may  be  supposed,  to  elevate  the  people  to  an  ap|)recia- 
tion  of  the  refinements  and  magnificence  of  the  people  in  Europe 
and  Asia.  It  has  assumed  the  guardianship  and  education  of  the 
Indians,  with  all  of  its  expensive  and  complicated  conseciuences. 
It  has  proclaimed  to  the  world  what  is  called  the  Monroe  doctrine, 


130  OUR    FEDERAL    RELATIONS. 

that  no  more  monarchies,  or  greater  monarchical  influences  are  to 
be  established,  or  tolerated  on  the  American  continent,  which  im- 
plies a  right  and  a  will  to  prevent  them  by  the  government  of  the 
United  States.  Without  further  enumeration  this  incomplete  list 
may  be  closed  by  reference  to  its  purchase  of  Alaska,  in  the  Arctic 
regions  of  North  America,  for  the  benefit  of  the  whalers  and  fur 
traders,  and  the  expenditure  of  the  people's  money  in  aid  of  ex- 
peditions to  find  the  North  pole  for  the  purpose  of — (I  must  be  ex- 
cused for  not  having  inventive  imagination  sufficient  to  complete 
this  sentence). 

All  of  these  things  may  be  admitted  to  be  good  of  themselves, 
and  beneficial  to  the  people  of  the  United  States;  still  the  question 
under  consideration  would  not  be  settled.  For  just  such 
results  have  been  accomplished  in  England  by  the  action  of  its 
government,  which  is  an  absolute  sovereignty,  with  unlimited 
powers  to  do  any  and  every  thing  practicable  to  promote  the 
private,  as  well  as  public  interests  of  its  people,  and  to  extend  its 
dominion,  rule  and  influence.  It  might  be  difficult  to  discover  a 
great  many  things  done  by  England  for  a  century  past  to  promote 
the  private  material  interests  of  its  people,  that  the  government  of 
the  United  States  has  not  done,  by  the  direct  or  indirect  action, 
for  the  same  purpose  notwithstanding  it  is  not  a  sovereignty,  does 
not  exercise  any  general  absolutely  sovereign  powers,  but  was 
created,  exists,  and  acts  by  authority  of  governmental  powers, 
delegated  to  it  by  the  people  of  the  States,  which  powers, 
with  the  object  expressed  or  implied  in  them,  are  few  in 
number,  and  defined  in  the  Constitution  of  the    United    States. 

This  assertion,  as  to  the  nature  of  the  powers  exercised  by  the 
government  of  the  United  States,  is  based  upon  the  American 
theory  of  ®ur  governments,  both  federal  and  State,  that  the  people 
are  sovereign,  and  not  the  governments,  which  they  have  instituted 
by  the  delegation  of  certain  defined  powers  to  be  exercised  by  them, 
as  prescribed  in  the  organic  law,  the  written  constitutions.  The 
people  occupy  the  position  of  a  principal,  and  the  government 
that  of  an  agent,  acting  under  a  written  power  of  attorney,  which 
specifies  the  powers  to  be  exercised  by  the  functionaries  of  each 
department,  and  the  objects,  upon  which  the  powers  delegated  are 
to  be  exercised.  That  the  powers  granted  the  different  depart- 
ments of  the  government  of  the  United  States  were  limited,  might 
have  been  inferred,  from  the  fact  that  they  were  delegated,  and 
specifically  set  forth,  but  to  leave  no  doubt  about  that,  an  amend- 
ment of  the  Constitution  was  very  soon  adopted,  providing,  that 
"the  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respec- 
tively, or  to  the  people."  The  provisions  relating  to  the  organic 
structure  of  the  government,  by  division  into  three  departments, 
and  those  relating  to  restrictions    upon   the    governments   of  the 


OUR    FEDERAL    RELATIONS.  I3I 

United  States  and  of  the  States,  may  be  passed  over  for  the  present, 
as  they  have  not  contributed  in  any  great  degree  to  produce  the 
results  pertaining  to  the  private  material  interests  of  the  people, 
that  have  been  partially  enumerated. 

To  find  that  the  powers,  that  have  so  contributed,  are  few  in 
number,  reference  may  be  had  to  those  granted  to  the  Congress 
under,  and  by  virtue  of  which,  the  legislative  powers  therein  grant- 
ed to  it  should  be  exercised.  So  far  as  they  are  necessary  to  be 
refered  to,  they  are  the  following: 

Sec.  8.  The  Congress  shall  have  the  power, 

1.  To  lay  and  collect  Taxes,  Duties,  Imports  and  Excises  to  pay 
the  Debts,  and  provide  for  the  Common  Defense  and  general  welfare 
of  the  United  States;  but  all  Duties,  Imposts  and  Excises  shall  be 
uniform  throughout  the  United  States. 

2.  To  borrow  Money  on  the  credit  of  the  United  States. 

3.  To  regulate  Commerce  with  foreign  Nations,  and  among  the 
several  States,  and  with  the  Indian  tribes. 

4.  To  establish  a  uniform  Rule  of  Naturalization,  and  uniform 
Laws  on  the  subject  of  Bankruptcies,  throughout  the  United 
States. 

5.  To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  fix  the  Standard  of  Weights  and   Measures. 

6.  To  provide  for  the  Punishment  of  counterfeiting  the  securities 
of  Current  Coin  of  the  United  States. 

7.  To  establish  Post  Offices  and  post  Roads. 

8.  To  promote  the  Progress  of  Science  and  useful  Arts,  by  secur- 
ing, for  limited  Times,  to  Authors  and  Inventors,  the  exclusive 
rights  to  their  respective  Writings  and  Discoveries. 

9.  To  constitute  Tribunals  inferior  to  the  Supreme  Court. 

10.  To  define  and  punish  Piracies  and  Felonies  committed  on 
the  high  Seas,  andjOffenses  against  the  law  of  nations. 

11.  To  declare  War,  grant  letters  of  Marque  and  Reprisal,  and 
make  Rules  concerning  Captures  on  Land  and  Water. 

T2.  To  raise  and  support  Armies,  but  no  Appropriation  of  Money 
to  that  use  shall  be  for  a  longer  Term  than  two  Years. 

13.  To  provide  and  maintain  a  Navy. 

14.  To  make  Rules  for  the  Government  and  Regulation  of  land 
and  naval  Forces. 

15.  To  provide  for  the  calling  forth  of  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrection,  and  repel  Invasions. 

16.  To  provide  for  organizing,  arming  and  disciplining  the  Militia, 
and  for  governing  such  Part  of  them  as  may  be  employed  in  the 
Service  of  the  United  States,  reserving  to  the  States  respectively 
the  appointment  of  the  Officers,  and  the  Authority  of  training  the 
Militia  according  to  the  Discipline  prescribed  by  Congress. 

17.  To  exercise  exclusive  Legislation  in  all  cases  whatsoever  over 
such  District,  etc.,  (referring  to  places  for   the  seat  of  government, 


132  OUR    FEDERAL    RELATIONS. 

Forts,  Magazines,  Arsenals,  Dock  Yards  and  other  needful  Buildings 
ceded  by  the  States). 

It  will  be  seen  that  the  objects,  upon  which  the  powers  are  to  be 
excercised,  are  embraced  in  the  specification  of  the  powers  them- 
selves respectively,  and  are  for  the  most  part  indicated  by  the 
words  commencing  with  capital  letters  written  here,  as  they  were 
written  in  the  original  instrument,  on  file  in  the  Secretary  of  State's 
office.  (S©  certified  by  James  Buchanan,  when  Secretary  of  State, 
in  1846.) 

The  objects  specified,  in  declaring  the  powers  granted,  were 
exactly  the  things,  and  the  only  things  intended  to  be  accomplish- 
ed by  the  execution  of  the  powers  respectively,  which  contained 
their  appropriate  objects.  It  may  be  truly  asserted  that  there  is 
not  a  single  power  granted  to  Congress,  or  to  any  department  or 
officer  that  does  not  contain  in  plain  language,  or  by  reasonable 
and  necessary  inference,  the  specific  object  designed  to  be  accom- 
plished by  the  power  specially  granted.  And  this  is, emphatically 
the  case  as  to  each  and  every  one  granted  to  Congress. 

The  objects  for  legislative  action  are  plainly  expressed  in  the 
powers  that  have  been  granted,  but  not  so  definitely  with  extent 
and  limits,  as  to  prevent  differences  of  opinion  in  the  construction 
necessary  to  determine  what  was  actually  meant  by  the  expres- 
sions used  in  regard  to  them.  The  terms  used  must  be  interpreted 
in  the  light  of  the  existing  and  antecedent  circumstances,  relating 
to  the  objects,  as  they  must  have  been  known  to  those  who  adopt- 
ed the  Constitution,  so  far  as  it  is  practicable  at  all  times  subse- 
quently to  ascertain  them.  To  appreciate  this  as  a  means  of  in- 
terpretation it  is  only  necessary  to  mention  the  words  used,  with- 
out explanation  of  their  meaning  being  defined,  because  it  was 
well  understood  by  those  who  used  them,  such  as  taxes,  imposts, 
excises,  debts,  common  defense,  general  welfare,  commerce, 
money,  coin,  postoffices  and  postroads,  militia,  courts,  etc.  Here 
it  will  be  seen  that  the  purposes  for  which  the  powers  are  granted 
are  not  fully  expressed,  but  indicated  by  the  use  of  terms  from 
which  the  purposes  can  certainly  be  infered.  In  the  clause  giv- 
ing the  power  to  coin  money  the  purpose  is  not  stated.  But  the 
purpose  for  which  money  is  coined  was  then  well  and  universally 
known  to  be  to  furnish  to  the  people  a  circulating  medium  of  fixed 
value.  That  is  a  liberal  though  necessary  implication  in  the  con- 
struction given  to  the  clause.  That  liberal  implicatien,  however, 
has  a  well  defined  limitation,  from  the  use  of  the  words  "money" 
and  "coin,"  which  requires  the  circulating  medium  to  be  coined 
gold  and  silver,  and  not  iron,  steel,  or  precious  stones  or  paper. 
A  like  limitation  must  be  applied  to  the  other  objects  in  all  the 
other  general  powers  from  the  words  used  to  indicate  the  objects. 

The  powers  given  "to  lay  and  collect  taxes,"  etc.,  "to  proVide," 
"to  regulate,"  and  the  like,  were  indefinite  us  to  the   manner  and 


OUR    FEDERAL    RELATIONS.  I33 

means  to  be  used  in  the  execution  of  the  general  powers,  thus 
granted  for  the  objects  specified,  and  opened  a  wide  field  of  dis- 
cretion to  be  exercised  by  Congress  in  that  regard.  For  such  gen- 
eral grants  of  power  would  imply  the  incidental  power  to  execute 
them.  To  furnish  a  guide  to  this  necessary  implicption,  another 
clause  was  inserted  in  the  Constitution  as  follows: 

18.  "To  make  all  laws,  whith  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of  the  United 
Slates,  or  in  any  department  or  officer  thereof." 

This  clause,  instead  of  enlarging  the  powers  of  Cougress,  was 
intended  as  a  limitation  and  restriction  of  the  broad,  and  indefi- 
nite implication  of  powers,  that  would  otherwise  have  arisen,  in 
the  passage  of  laws,  to  carry  out  the  other  powers  that  are  ex- 
pressed in  general  terms,  and  confined  Congress  to  the  passage  of 
such  laws  only  as  were  necessary  and  proper  for  carrying  into  ef- 
fect those  general  powers  vested  in  it,  and  in  other  departments, 
and  officers  of  the  government.  The  general  discretionary  impli- 
cation of  power  to  execute  other  powers  are  therefore  superseded 
and  abrogated,  by  this  special  grant  with  its  limitation.  What- 
ever discretion  is  left,  is  in  the  determination  of  what  laws  would 
be  necessary  and  proper,  to  carry  into  execution  the  general  pow- 
ers— that  is,  what  laws,  in  view  of  the  nature  and  terms  of  the 
grant  of  general  powers,  and  of  the  objects  to  ba  accomplished  by 
them  respectfully,  as  indicated  in  the  grants  themselves,  would  rea- 
sonably be  needed  and  appropriate  to  affect  the  objects  contem- 
plated and  expressed,  and  those  only.  All  of  the  powers  granted, 
are  granted  only  for  the  purpose  of  accomplishing  the  objects,  ex- 
pressed in  connection  with  the  grants  of  powers.  The  use  of  two 
words  of  limitation  "necessary"  and  "proper"  must  have  been  for 
some  useful  purpose,  having  reference  to  the  objects  to  be  attain- 
ed. Unde»-  this  provision  it  was  made  the  duty  of  Congress,  first 
to  determine  exactly  what  was  the  particular  object  designed  to  be 
accomplished,  by  any  one  of  the  general  powers  granted  to  Con- 
gress, and  with  that  object  in  view,  and  that  alone;  next,  the  law, 
under  the  auxiliary  clause,  should  be  shaped  so  as  to  directly  ef- 
fect that  particular  object;  with  a  single  purpose  to  that  end,  and 
no  other,  is  a  duty  enjoined  upon  Congress,  by  the  limitation,  that 
it  shall  be  only  such  a  law  as  would  be  necessary  and  proper.  If 
in  any  case  any  part  of  the  law  passed,  under  the  auxiliary  clause, 
was  not  necessary  to  effect  the  exact  object  expressed  in  the  gen- 
eral power,  it  would  be  superfluous  and  unauthorized;  and  if  it  was 
not  proper  to  effect  such  object  alone,  but  was  so  shaped  as  to  ac- 
complish and  with  a  design  to  accomplish  some  other  object  in 
addition  to  that  expressed  in  the  general  power,  thereby  making  it 
accomplish  two  distinct  objects,  one  direct,  and  the  other  inci- 
dental, one  expressed,  and  the  other  not  expressed  in  the  general 


134  OUR    FEDERAL    RELATIONS. 

power,  then  the  law,  so  passed  under  this  auxiliary  power,  would 
be  unauthorized  to  the  extent  to  which  it  was  shaped  and  used  to 
effect  an  object,  not  embraced  in  the  Constitution. 

If  the  main  object  accomplished  was  the  one  that  was  incidental 
and  not  expressed,  and  the  law  was  so  shaped  as  to  show  the  de- 
sign to  effect  the  incidental  object  mainly,  it  would  be  a  flagrant 
perversion  of  the  powers  granted,  by  which  the  objects  of  the  gov- 
ernmental action  might  be  indefinitely  extended  to  all  objects, 
limited  only  in  their  scope  and  diversity  by  the  failure  of  adroit 
ingenuity  to  devise  the  perversions.  This  may  be  illustrated  by 
reference  to  some  of  the  general  powers  that  have  been  quoted. 
(Part  of  the  5th.)  The  power  "to  coin  money,  regulate  the  value 
thereof,"  etc. 

Money  meant  coined  gold  and  silver.  Its  value  as  coin  being 
fixed,  it  would  answer  the  purpose  for  which  money  is  used.  The 
objects  embraced  in  the  provision  are  money  and  its  value  when 
coined.  The  general  power  granted  is  to  make  money  by  coining 
gold  and  silver,  and  to  fix  a  value  to  the  money  that  is  ceined. 
The  use  of  the  auxiliary  power  (clause  18  quoted),  is  to  give  au- 
thority for  the  passage  of  such  laws  as  may  be  necessary  and  prop- 
er, to  get  charge  of  the  gold  and  silver,  establish  a  mint  with  its 
implements,  and  working  force,  and  indicate  the  denominations, 
and  the  designs  to  be  stamped  thereon,  and  the  values  respectively  of 
the  money  to  be  coined,  together  with  the  disposition  of  it  when 
completed.  If  under  the  auxiliary  power  a  law  should  be  passed 
authorizing  paper  or  parchment  to  be  stamped,  and  a  value  to  be 
fixed  upon  it  as  money,  and  requiring  it  to  be  used  as  money  of 
the  value  fixed  upon  it,  it  would  certainly  be  a  flagrant  perversion 
of  the  powers  conferred  on  Congress  in  the  clauses  referred  to  (5  th 
and  i8th).  This  would  follow  from  the  words  "money"  and  "coin" 
as  used,  which  would  limit  the  powers  of  Congress  in  providing  for 
the  people  a  circulating  medium  to  the  materials  of  gold  and  sil- 
ver, coined  into  money. 

Another  general  power  is  "To  establish  postoflBces  and  post 
roads."  Here  again  the  purpose  is  indicated  by  words  descriptive 
of  the  necessary  appurtenances,  in  carrying  on  the  business  con- 
templated, which  was  the  receiving,  transporting,  and  delivery  of 
letters  and  other  mail  matter,  for  the  convenience  and  benefit  of 
the  people,  who  might  send  or  receive  such  letters  or  mail  matter. 
This  was  the  single  and  the  only  object  of  the  grant  of  power,  as 
indicated  by  the  use  made  then  and  previously  of  postoffices  and 
post  roads.  The  words  post  roads  were  used  to  authorize  the  es- 
tablishing of  the  routes  between  the  postoffices,  upon  which  the 
mail  was  to  be  transported.  The  word  roads  would  convey  the 
idea  that  the  routes  should  be  by  the  land,  as  doubtless  was  the 
practice  previously.  When  afterwards  steamboats  plied  between 
points  in  the  country  in  which  postofiices   were  established,  it  re- 


OUR    FEDERAL    RELATIONS.  135 

quired  a  liberal  interpretation  of  the  word  roads  to  establish  a 
route  as  a  post  road  on  the  water  of  streams  and  bays,  navigated 
by  steamboats  or  other  craft.  Suppose  it  should  be  convenient 
and  beneficial  to  citizens  of  New  York  to  send  a  few  letters  to  Rio 
Janeiro,  a  port  in  South  America,  Congress  would  have  to  indulge 
in  a  most  extravagant  implication  of  power,  in  establishing  a  "post 
road"  in  the  ship's  track  in  the  Atlantic  ocean,  from  a  postoffice 
established  in  the  city  of  New  York  to  a  postoffice,  or  some  sort  of 
substitute  for  it,  in  the  city  of  Rio  Janeiro.  And  suppose  a  ship 
line  should  be  employed  to  carry  the  mail  on  that  route,  by  giving 
in  money  a  large  bounty  annually,  amounting  to  hundreds  of  thou- 
sands of  dollars,  entirely  disproportioned  (as  $500  or  perhaps  five 
thousand  dollars  to  $1)  to  the  value  of  the  service  rendered  in  car- 
rying a  few  letters  in  the  mail  from  one  place  to  the  other.  The 
objects  of  the  bounty  a?e  to  pay  for  carrying  the  mail  (which  is 
comparatively  a  small  consideration  in  the  giving  of  it),  and  also 
an  increase  and  promotion  of  the  trade  between  the  two  parts,  that 
being  the  leading  abject  in  giving  the  bounty.  It  would  enable  the 
ship  line  to  force  an  increase  of  the  trade  by  low  freights,  that 
would  not  of  themselves  be  an  adequate  compensation  for  the  voy- 
age— the  deficiency  in  which  would  be  supplemented  with  the 
profit  by  the  bounty  money  that  it  would  get  from  the  coffers  of 
the  government,  raised  by  taxing  the  people.  This  is  not  "regu- 
lating commerce  with  foreign  nations,''  but  it  is  making  trade  at 
the  government's  expense  to  benefit  the  merchants  of  New  York  in 
their  private  pecuniary  interests. 

Here  there  are  two  distinct  objects  accomplished  under  the  gen- 
eral power  "To  establish  postoffices  and  post  roads;"  the  one  di- 
rect— to  carry  the  mails,  and  the  other  indirect  (badly  disguised  by 
being  not  named  in  the  contract) — to  increase  foreign  trade.  The 
increase  of  foreign  jrade  is  not  mentioned  as  an  object  in  any  of 
the  powers;  granted  to  Congress  in  the  Constitution,  nor  can  it  be 
made  one,  by  the  broadest  implication,  and  the  most  liberal  con- 
struction, that  can  be  indulged,  in  regard  to  any  provision  of  the 
Constitution,  when  properly  understood.  The  laws  passed  and  so 
shaped  with  the  design  to  increase  foreign  trade  are  therefore  an 
unwarranted  perversion  of  the  powers  granted  to  Congress  to  es- 
tablish postoffices  and  post  roads.  A  similar  perversion  of  this 
power  is  plainly  exhibited,  by  making  postoftices  broker  establish- 
ments, to  transmit  money  from  one  person  to  another  in  different 
localities,  for  compensation  given  to  the  government  for  service 
performed,  the  same  as  is  given  to  banks  for  similar  service. 

Let  us  examine  the  Constitution  to  see  if  you  can  find  any  pro- 
vision in  it  that  gives  to  Congress  the  power  "To  encourage 
the  manufacture  of  iron  in  the  United  States."  Upon  the 
most  exhaustive  search,  we  will  fail  to  find  it  by  any  sort  of  infer- 
ential construction.      We   do   find,  however,  in  part  of  the  Sec.  8, 


136  OUR   FEDERAL    RELATIONS. 

Art.  I,  the  power  "To  lay  and  collect  taxes,  duties,  imposts  and  ex- 
cises to  pay  the  debts  of  the  United  States,"  etc.  To  carry  this 
general  power  into  execution  the  auxiliary  clause  (18  of  same  Art. 
and  Sec.)  must  be  called  into  requisition;  which  gives  Congress 
the  additional  power  to  pass  such  laws  as  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  general  pow- 
er; in  order  of  course  to  accomplish  the  object  for  which  the  gen- 
eral power  is  given,  which  is  to  pay  the  debts.  Proceeding  then  to 
execute  this  general  power,  Congress  passes  a  law  for  laying  and 
collecting  a  duty  (commonly  called  a  tariff),  of  forty  per  cent, 
upon  all  iron  imported  from  foreign  countries  into  the  United 
States,  to  be  paid  into  the  custom  house  for  the  use  of  the  United 
States,  with  which  to  pay  its  debts.  That  brings  in  a  certain  amount 
for  that  purpose — say  one  million  of  dollars.  But  statesmen  know, 
and  it  is  supposed,  most  of  them  would  admit,  that  if  a  duty  of 
twenty  per  cent,  instead  of  forty,  were  laid  it  would  have  brought 
in  double  the  amount  of  money,  with  which  to  pay  the  debts — say 
two  millions  of  dollars.  If  the  object  was  to  exercise  the  power  in 
the  manner  necessary  and  proper  to  pay  the  debts,  why  was  not 
the  duty  put  at  twenty  per  cent?  The  answer  is,  that  Congress  pur- 
posely so  exercised  the  auxiliary  power  as  to  embrace  in  their  leg- 
islative action  in  effect  another  power  and  object,  not  found  in  the 
Constitution,  which  was  the  one,  in  vain  searched  for  awhile  ago, 
— "To  encourage  the  manufacture  of  iron  in  the  United  States,"  and 
by  which  they  give  a  bounty  to  the  manufacturers  of  iron  in  this 
country  from  three  to  five  millions  of  dollars  for  every  million  of 
dollars  collected  to  pay  the  debts  under  the  duty  of  forty  per  cent. 
That  amount,  of  from  three  to  five  millions  of  dollars,  was  paid  to 
the  home  manufacturers  by  our  own  people,  who   bought  the  iron. 

If  the  duty  had  been  only  twenty  per  cent,  our  purchases  would 
have  paid  proportionately  less  for  the  iron  bought  by  them,  and 
the  government  would  have  paid  twice  the  amount  towards  its 
debts. 

It  is  hardly  necessary  to  further  point  out  that  here  there  has 
been  two  objects  accomplished  under  pretense  of  executing  one 
power,  one  of  which  was  to  promote  the  private  pecuniary  interests 
of  a  particular  class  of  persons,  which  as  an  object,  either  express- 
ed or  implied,  is  not  to  be  found  in  the  power  granted  (Art.  i, 
sec.  8,  clause  i),  nor  in  any  other  place  in  the  Constitution. 

Another  mode  of  enlarging  the  powers  granted  to  Congress  may 
be  noticed.  One  of  the  clauses  gives  Congress  the  power:  "10.  To 
define  and  punish  Piracies  and  Felonies,  committed  on  the  Seas, 
and  Offences  against  the  Law  of  Nations." 

Piracy  has  been  defined  to  be  "robbery  or  forcible  depredation 
on  the  high  seas,  without  lawful  authority  and  done  niamo  furandi, 
and  in  the  spirit  and  intention  of  universal  hostility."  Those  who 
framed  the  Constitution  doubtless   well    understood    what   piracy 


OUR    FEDERAL    RELATIONS.  173 

was,  and  that  it  was  an  offense  equalJy  against,  and  punishable  by 
all  civilized  nations,  as  being  against  the  law  of  nations.  Several 
statutes  were  passed  by  Congress  at  an  early  day  on  the  subject, 
and  one  in  1820  provided  in  subsctance,  that  if  any  citizen  of  the 
United  States,  being  of  the  crew  af  any  foreign  vessel,  engaged  in 
the  slave  trade,  or  any  person  whatever  being  of  the  crew  of  any 
vessel  armed  in  whole  or  in  part,  or  navigated  for  or  in  behalf  of 
any  citizen  of  the  United  States,  which  was  engaged  in  the  slave 
trade,  should  be  adjudged  a  pirate,  and  on  conviction,  should 
suffer  death.  This  might  well  have  been  made  a  felony  with  the 
same  punihment,  but  it  could  not  be  made  piracy,  according  to 
the  universal  understanding  of  the  ingredients  of  that  offense  at  the 
time  the  Constitution  was  adopted.  The  objection  to  the  statute 
is,  not  that  the  offense  created  by  it  was  of  less  degree  in  turpitude, 
but  that  the  law  was  not  responsive,  and  correspondent  to  the 
grant  of  power  to  Congress  to  define  and  punish  piracies,  which  in 
a  limited  government,  guided  in  its  action  by  the  terms  of  a  written 
Constitution,  is  a  matter  of  first  importance.  Such  a  departure, 
under  the  laudable  impulse  to  deter  persons  from  the  commission 
of  what  has  become  to  be  regarded  as  a^heinous  offense  against  the 
rights  of  mankind,  makes  a  precedent,  that,  under  similar  impulses 
on  other  subjects,  may  be  followed  by  another  and  another,  until 
the  guides  for  legislative  action  may  become  too  little  heeded  in 
legislation. 

Another  mode  of  obscuring  the  distinctive  organic  rules  of 
action  may  be  in  blending  in  laws  upon  the  subject  matters 
peculiarly  pertaining  to  the  different  departments  of  the  govern- 
ment; which  may  be  illustrated  by  the  law  creating  the  tribunal 
styled  "The  ('ourt  of  Claims,"  under  the  clause  which  gives 
Congress  the  power:  "9.  To  constitute  Tribunals  inferior  to  the 
Supreme  Court." 

Without  attempting  to  make  a  complete  detailed  statement  of 
the  various  subjects  embraced  in  the  jurisdiction  of  that  tribunal 
called  a. court,  it  will  suffice  to  say,  that  it  exercises  jurisdiction 
in  certain  suits,  brought  by  persons  asserting  claims  against  the 
United  States,  founded  on  certain  laws  of  Congress,  or  on  contracts 
express  or  implied  with  the  government,  claims  of  persons  referred 
to  it  by  Congress,  in  which  legislative  relief  is  sought;  and  claims 
refered  to  it  by  the  heads  of  the  Executive  Departments,  involving 
disputed  facts,  or  controverted  questions  of  law,  dependent  upon 
the  amount  in  controversy,  or  the  importance  of  the  questions  at 
issue. 

An  appeal  to  the  Supreme  Court  of  the  United  States  is  allowed 
on  behalf  of  the  United  States,  when  the  adjudication  is  adverse 
to  it,  and  on  behalf  of  the  applicant  or  plaintiff,  where  the  amount 
in  controversy  exceeds  three  thousand  dollars,  or  where  his  claim 
is  forfeited    to  the  United  States   by    the   judgment    of    the    court. 


138  OUR    FEDERAL    RELATIONS. 

The  right  to  sue  in  this  court  is  not  dependent  upon  citizenship  of 
the  parties,  or  subject  matter  of  the  proceeding  as  it  is  prescribed 
by  the  Constitution  for  the  federal  courts  generally.  It  is  therefore 
a  tribunal  sui ge?teris.  The  cases,  in  which  the  United  States 
permits  suits  to  be  brought  by  persons  against  it,  are  pertinent  to 
the  judical  department  of  the  government.  The  cases  refered  to  it 
by  Congress  are  pertinent  to  the  legislative  department,  the  adju- 
dication of  which  by  the  court  must  be  designed  to  relieve  the 
committees  from  the  labor  and  drudgery  of  investigating  and 
deciding  upon  the  merits  of  the  claims  presented  for  legislative 
relief,  and  the  adjudications  cannot  be  conclusively  binding  upon 
Congress,  any  more  than  the  well  a  considered  report  of  the  com- 
mittee; otherwise  than  upon  the  supposition,  that  it  can  and  will 
submit  its  judgment  of  the  merits  of  a  claim  to  the  judgment  of 
persons,  who  are  not  members  of  Congress,  and  have  no  constitu- 
tional right  to  participate  in  their  duties  of  legislation  imposed  on 
them  by  the  Constitution.  The  cases  referred  to  that  court  by 
the  heads  of  the  executive  department  of  the  government, 
it  is  the  constitutional  duty  of  its  officers  to  investigate  and 
decide  according  to  their  own  judgment  of  the  merits  of  the  claims 
unless  indeed  it  is  competent  for  Congress,  the  legislative  depart- 
ment, to  provide  a  tribunal  in  the  judical  department  to  conclusive- 
ly determine  for  and  direct  the  executive  officers  how  they  shall 
perform  their  sworn  duties,  in  matters  pertaining  peculiarly  to  the 
executive  department  of  the  government. 

Upon  certain  contingencies  also,  the  wisdom  of  the  Supreme 
Court  of  the  United  States,  the  head  of  the  judiciary,  may  be 
appeal^  for  the  correction  of  any  error,  that  may  be  commited 
by  the  decision  of  this  court  upon  such  matters  pertaining 
to  the  legislative  and  executive  departments,  as  well  as  those 
pertaining  to  the  judicial  department. 

The  government  of  the  United  States  was  divided  into  three 
distinct  and  separate  departments,  so  that  the  independent  action 
of  each  one  of  them  upon  the  subjects  assigned  to  each,  within  the 
scope  of  its  constitutional  authority,  would  operate  as  a  check  upon 
the  other  departments,  in  any  violation  of,  or  excess  of  power 
assumed,  under  the  Constitution  by  either  one.  This  can  be  done 
only  by  such  action  on  the  part  of  each  one  as  will  maintain  and 
strictly  preserve  the  distinctive  identity,  as  one  separate  part  in  the 
system  of  government.  It  was  founded  also  upon  the  assumption, 
by  those  who  devised  and  adopted  it,  that  the  offices  in  each 
department  would  be  filled  by  persons  competent  to  investigate 
and  determine  whatever  of  law  or  fact,  however  abstruse,  diffuse, 
and  complicated,  that  might  be  involved  in  the  performance  of 
their  official  duties,  without  any  official  advice,  direction  or  com- 
pulsion, from  the  officers  of  the  other  departments, — without 
shirking  from  responsibility  by  the  creation  of  boards,  courts,  or 


OUR    FEDERAL    RELATIONS.  I39 

commissions,  instituted  for  the  purpose;  specimens  of  which  we 
have  of  late  years  had  instances, — notably  the  returning  boards 
and  also  commission,  partly  composed  of  justices  of  the  Supreme 
Court,  known  vulgarly  "as  the  commission  of  eight  to  seven,"  to 
which  was  assigned  the  duty  by  Congress  to  investigate  and  deter- 
mine for  it,  the  question  then  presented  to  Congress  to  decide 
under  the  Constitution  and  laws,  as  to  who  had  been  elected  Pres- 
ident of  the  United  States. 

This  habitual  practice  of  the  courts  in  the  States  of  issuing  the 
writs  of  mandamus  and  of  injunction  to  judicially  dictate  to  the 
heads  of  the  executive  department  what  they  shall  and  shall  hot  do 
in  the  performance  of  their  appropriate  duties  as  executive  offi- 
cers, is  on  a  par  with  the  other  things  resorted  to. 

Such  means  adopted  to  aid  or  direct  the  persons,  elected  or  ap- 
pointed to  fill  the  offices  of  the   legislative  or   executive  depart- 
ments, by  persons  in  the  judicial  department,  or  in  boards,  courts 
and  commissions,  not  provided  for  in  the  Constitution,  is  a  glaring 
recognition  of  the  failure  of  the  safe  equipoise  of  the  government, 
moved  along  within  its  limited  and  bounded  sphere  of  constitution- 
al action  by  co-operative  action  of  the  three  departments,  legisla- 
tive, executive   and  judicial;  or  if  not  that,  it  is  indubitable  evi- 
dence that  those  who  have  administered   those  departments  have 
been  unmindful,   or  have  not  duly  appreciated  the  action  in  each 
one,  necessary  to  preserve  distinctively  their   separate   independ- 
ence, and  complete  co-ordinateness,  as  was  designed  by  the  fram- 
ers  of  the  Constitution,  and  which  was  the  boast  of  its   admirers, 
as  the  great  American  improvement  in  the  science  of  government. 
Speaking  of  departments,  reminds  me  not  to  omit  to  refer  to  the 
agricultural  department,  which  we  may  expect  to  be  established  in 
the  regular  course  of  events,  judging  from  the  progress  agriculture 
has   made  gradually   with   increasing  favor  during  forty  years,  be- 
ing engrafted  upon  the  government,  as  one  <»f  its  objects,  to  which 
its  power  of  collecting  and   expending   money  has  been   applied. 
Its  history  is   interestingly  curious.     Congress   was  given   power 
(8.)   "To   promote    the  progress  of  science  and  useful  arts,  by  se- 
curing for  limited  times,  to  authors  and   inventors,  the   exclusive 
right  to  their  respective  writings  and  discoveries."     The   manner 
in  which  the  progress  of  science  and  the  useful  arts  was  to  be  pro- 
moted  is   so   specifically  set  out  in  this  clause,  that  it  would  seem 
to  be  difficult  to  imagine  beforehand  how  it  could  be  made   sub- 
serve the  purpose  of  promoting  agriculture  also.     A  law  was  passed 
in  pursuance  to  it  providing  for  whatever  was  necessary  and  proper 
for  carrying  into  execution  the  power  granted,  by  having  applica- 
tions for   discoveries   examined  and   passed    upon,    patent    rights 
granted,  and  publications  made  in  book  form,  and  distributed,  ex- 
hibiting the  models,  and  giving  discriptions  of  the  inventions  that 
were  patented.     After  a  while  it  was  noticeable    that  those  books 


I40  OUR    FEDERAL    RELATIONS. 

called  "patent  office  reports"  contained  letters  from  farmers, 
planters  and  gardeners,  and  occasionally  scientific  disquisitions 
about  raising  crops  and  agriculture  generally,  and  in  the  course  of 
time  entire  books,  marked  on  the  back  "Agriculture,"  were  distrib- 
uted by  members  of  Congress  to  the  people,  their  constituents. 
Seeds  of  grains,  of  the  field  and  garden  vegetables,  of  cotton,  of 
flowers,  of  bulbs,  of  plants,  of  vines,  of  shrubs  and  of  trees, 
both  rare  and  common,  were  gathered  up  by  the  patent 
officers  from  the  four  quarters  of  the  world,  and  sent  through 
the  postoffices  free  of  charge  to  the  people  of  the  United 
States.  The  business  became  so  extensive  and  important  by 
its  gradual  growth,  that  it  could  no  longer  be  sheltered  under 
the  wing  of  patent  office,  and  it  was  made  a  separate  bureau,  "The 
Bureau  of  Agriculture.''  The  business  is  still  growing  in  propor- 
tions and  favor,  and  if  it  is  an  object  to  which  the  powers  of  the 
government  should  be  devoted  in  promoting  the  private  pecuniary 
interest  of  the  people  its  relative  importance  compared  to  other 
industrial  products,  would  seem  to  require  that  it  should  be  elevat- 
ed into  a  separate  department,  with  a  secretary  of  agriculture; 
and,  as  that  is  yet  by  far  the  greatest  industrial  interest  in  the 
country,  and  as  it  is  the  substratum  foundation  of  all  the  varied 
material  developments  from  which  wealth  and  civilization  ema- 
nate, he  should  occupy  the  position  of  Premier  in  the  cabinet  of 
the  President.  Nothing  further  need  be  said  on  this  subject  than 
that  the  word  agriculture  is  not  contained  in  the  Consritution  of 
the  United  States. 

Enough  has  been  said  to  render  it  obvious  that  some  other  pro- 
visions, besides  those  that  have  been  discussed,  must  be  found  in 
the  Constitution,  whose  construction  by  the  many  good,  conscien- 
tious, intelligent  and  patriotic  citizens,  who  have  participated  in 
the  administration  of  the  government,  could  possibly  justify  the  ex- 
ercise of  the  powers  granted,  so  as  to  produce  the  various  results 
that  have  been  adverted  to.  There  must  be  provisions,  that 
have  been  understood  to  vest  in  the  government  a  competency  in 
carrying  on  its  administration,  and  in  promoting  the  general  and 
special  interests  of  the  people,  as  fully  in  every  respect  as  an  abso- 
lute sovereignty  could,  save  and  except  only,  so  far  as  it  is  limited 
and  restricted  in  its  objects,  and  powers  of  governmental  action, 
by  the  express  restrictions  and  limitations  of  the  Constitution.  It 
is  to  be  presumed,  that  such  provisions  are  to  be  found  in  the  pre- 
amble to  the  Constitution,  and  in  the  taxation  clause,  in  both  of 
which  the  expression,  "the  general  welfare,"  is  used.  The  taxa- 
tion clause  reads  as  follows:  "The  Congress  shall  have  power  to 
lay  and  collect  taxes,  duties,  imposts  and  excises,  to  pay  the  debts, 
and  provide  for  the  common  defense  and  general  welfare  of  the 
United  States;  but  all  duties,  imposts  and  excises  shall  be  uniform 
throughout  the  United  States." 


OUR  FEDERAL  RELATIONS.  I4I 

It  has  been  before  stated,  that  for  every  object,  intended  to  be 
accomplished  by  the  government  of  the  United  States,  as  a  limit- 
ed government,  there  was  expressed  in  the  Constitution  a  delega- 
tion of  power  to  be  used  in  the  accomplishment  of  such  object, 
and  no  other  object  indirectly  by  the  use  of  it. 

The  meaning,  therefore,  of  this  clause  was  and  is,  that  Congress 
shall  have  power  to  raise  money  to  be  expended  in  providing  for 
the  "general  welfare"  of  the  United  States  as  a  government,  by 
carrying  into  execution  all  of  the  powers  granted  to  Congress,  and 
all  other  powers  vested  by  the  Constitution  in  the  government  of 
the  United  States,  or  in  any  department  or  officers  thereof. 

Or  in  other  words,  the  "general  welfare"  of  the  United  States 
was  to  be  attained  as  an  object,  which  should  result  by  the  exer- 
cise of  the  taxation  power  in  the  collection  and  expenditure  of 
money,  in  the  execution  of  the  powers,  and  those  only  which  have 
been  delegated  to  the  government  as  specified  in  the  Constitution. 
That  this  is  the  correct  meaning  of  that  expression  is  abundantly 
evidenced  by  the  meaning  attached  to  it,  when  the  Constitution 
was  adopted,  and  when  previously  it  was  used  in  the  articles  of 
Confederation,  and  when  it  was  used  by  the  Congress,  held  from 
the  commencement  to  the  end  of  the  struggle  of  the  colonies  with 
the  mother  country. 

To  effect  the  various  objects  by  the  government,  which  have 
been  adverted  to,  it  must  have  been  understood  to  mean,  that 
Congress  could  raise  and  expend  money  for  any  and  all  objects 
and  purposes  whatever,  that  it  should  deem  to  be  promotive  of  the 
general  welfare  of  \.\\q  people  of  the  United  States,  unless  there  was 
to  be  found  some  clause  of  prohibition  in  the  Constitution. 
Or  in  other  words,  the  general  welfare  of  the  United  States  was 
understood  to  be  tantamount  to  the  general  material  and  social 
prosperity  of  the  people  of  the  whole  country,  in  all  of  their  in- 
dustrial pursuits,  and  that  Congress  could  constitutionally  exercise 
the  powers  granted  to  it  in  such  a  manner  as  to  directly  and  indi- 
rectly accomplish  those  general  objects.  For  instance,  laws  could 
be  so  passed  in  laying  duties  on  impoitations  as  to  indirectly  give 
substantial  aid  and  protection  to  persons  engaged  in  home  manu- 
factures of  various  sons,  and  thereby  also  give  employment  and 
adequate  remuneration  to  labor,  and  by  the  same  sort  of  indirec- 
tion the  general  trade  of  the  country  could  be  extended  and  en- 
larged by  laws  passed  to  carry  the  mails  by  water  to  distant  for- 
eign countries,  and  as  the  promotion  of  agriculture  would  tend  to 
produce  those  general  results,  by  enlarging  the  production  of  the 
country,  money  could  be  expended  to  furnish  the  people,  who  fol- 
lowed that  business,  with  information,  and  other  more  substantial 
aids,  in  protecting  their  employment  of  labor  and  capital  in  it. 

That  this  could  not  have  been  the  meaning  of  the  term  "general 
welfare,"  as  it  was  understood  by  those  who  framed  and  adopted 


142  OUR   FEDERAL    RELATIONS. 

the  Constitution,  will  be  made  evident  by  ascertaining  its  frequent 
use  previously  in  the  struggle  with  England,  and  its  well  estab- 
lished meaning,  when  then  used,  and  by  a  proper  construction  of 
the  taxation  clause  in  which  it  is  found,  guided  by  the  light  of  the 
circumstances,  and  purpose  attending  its  use  previously;  and  by 
reference  to  other  clauses  in  the  Constitution,  which  raise  a  vio- 
lent presumption  against  any  construction  that  such  a  meaning 
could  reasonably  have  been  attached  to  it,  when  nsed  in  the  Con- 
stitution. 

In  the  Congress  of  1774,  at  Philadelphia,  the  delegates  were 
commissioned,  by  each  of  the  colonies  there  and  then  represented, 
by  a  written  authority  given  to  each  of  them,  "to  meet  and  consult 
together  for  the  common  welfare."  The  common  welfare  then 
consisted  in  seeking  by  argument  and  remonstrance,  jointly  made, 
to  procure  from  England  the  recognition  of  the  political  right  of 
each  colony  lO  tax  itself,  and  to  induce  England  to  desist  from 
claiming  and  exercising  the  right  of  taxing  the  colonies  for  the 
general  revenue  of  the  kingdom.  The  term  ''common  welfare," 
related  to  the  political  rights  of  each  of  the  colonies,  as  a  local 
government,  and  to  nothing  else,  for  there  was  then  nothing  else 
in  issue. 

The  Congress  that  met  in  May,  1775,  were  given  by  the  colonies 
respectively  additional  authority  to  concert,  agree  upon,  order 
and  prosecute  measures  for  the  same  purpose.  This  increase  of 
authority  was  made  necessary  by  the  fact  that  hostilities  had  com- 
menced near  Boston. 

Such  was  generally  the  tenor  of  the  instructions  of  each  of  their 
delegates,  until  the  adoption  of  the  Articles  of  Confederation,  on 
ist  of  March,  1781, — and  during  all  that  time  the  Congress  was  a 
mere  agency,  acting  first  for  the  colonies,  and  then  for  the  inde- 
pendent sovereign  States,  into  which  the  colonies  had  been  con- 
verted. Whatever  Congress  did,  had  reference  to  the  public  de- 
fense, and  to  the  general  welfare  of  the  associated  local  govern- 
ments in  respect  to  their  political  status,  and  not  in  reference  to 
their  internal  government,  or  to  promote  the  private  pecuniary  in- 
terest of  their  people.  And  the  same  may  be  said  in  regard  to  the 
federation  of  the  States,  formed  by  the  Articles  of  Confederation, 
a  draft  of  which  was  completed  and  submitted  to  the  States  the 
15th  of  November,  1777,  and  adopted  and  put  in  operation  March 
I,  1781.  The  States  did  not,  by  those  articles,  confer  upon  the 
Congress  a  single  power  authorizing  it  to  do  anything  to  promote 
the  private  pecuniary  interest  of  any  person,  or  to  encourage  any 
private  pursuit  or  business.  The  Articles  of  Confederation  read 
as  follows: 

"Art.  3.  The  said  States  hereby  enter  into  a  firm  league  of 
friendship  with  each  other,  for  their  common  defense,  the  security 
of  their  liberties,  and  their  mutual  and  general  welfare,  and  bind 


OUR    FEDERAL   RELATIONS,  143 

themselves  to  assist  each  other  against  all  force  offered,  or  attacks 
made  upon  them,  or  any  of  them,  on  account  of  religion,  sover- 
eignty, trade,  or  any  other  pretence  whatever." 

Here  the  words  "general  welfare"  were  used  to  express  the  con- 
dition that  the  States  would  be  in,  if  their  joint  power  should  suc- 
ceed in  preserving  their  political  independence  and  power  of  self- 
government,  for  which  they  were  then  struggling. 

"Art.  8.  All  charges  of  war,  and  all  other  expenses  that  shall 
be  incurred  for  the  common  defense  and  general  welfare,  and  al- 
lowed by  the  United  States  in  Congress  assembled,  shall  be  de- 
frayed out  of  a  common  treasury,  which  shall  be  supplied  by  the 
several  States,  in  proportion  to  the  value  of  all  land  within  each 
State,"  etc. 

By  the  exercise  of  -wYizt  powers  could  the  general  welfare  of  the 
Confederation  be  accomplished?  The  answer  is,  by  such  powers 
as  had  been  delegated  to  it, — for  it  could  rightfully  exercise  none 
others.  What  objects  could  be  accomplished  by  the  federation  as 
a  means  of  securing  and  maintaining  the  general  welfare?  The 
answer  is,  that  as  the  Articles  of  Confederation  expressly  indicate 
the  objects  within  its  jurisdiction,  it  could  apply  the  powers  alone 
which  were  delegated  to  it,  to  accomplish  such  objects,  and  none 
others.  And  as  the  promotion  of  the  private  pecuniary  interests 
of  individuals,  or  classes  of  individuals,  were  not  indicated  as  ob- 
jects to  be  promoted  by  it  to  secure  the  general  welfare,  it  had  no 
powers  given  to  it  to  be  applied  to  accomplish  such  objects,  and 
therefore  it  never,  while  it  existed  as  a  government,  attempted  to 
accomplish  such  objects  by  its  action. 

This  history  of  the  frequent  use  of  the  term  "general  welfare," 
exhibits  two  important  considerations  in  relation  to  it,  to-wit: 

First,  that  it  had  a  fixed  and  definite  meaning,  as  expressive  of 
the  good  condition,  the  successful  operation,  the  general  welfare 
of  the  government, — the  political  safety  and  well-being  of  the 
States  united,  first  under  the  Continental  Congress,  and  afterwards 
under  the  Confederation. 

Second,  that  the  general  welfare  that  was  attainable  at  all,  haa 
to  be  attained  by  the  exercise  of  such  powers,  and  only  by  such 
powers,  as  were  delegated  to  the  Continental  Congress  first,  and 
then  afterwards  to  the  federation. 

It  has  been  held  in  our  highest  courts,  that  a  word,  or  an  ex- 
pression, that  has  been  used  in  a  constitution,  in  a  statute,  in  a 
deed,  or  in  a  written  instrument  of  any  kind,  must  be  held,  whe> 
afterwards  interpreted,  to  mean  exactly  what  it  meant  at  the  time  it 
was  so  used.  It  is  important  to  notice  the  fact  that  in  1787,  when 
the  delegates  were  engaged  in  framing  the  Constitution,  they  were 
then  living  under  the  Confederation,  and  had  been  appointed  with 
the  express  authority,  by  their  respective  States,  to  amend  and  re- 
form the  Articles  of  Confederation,  so  as  to  form  a  more  efficient 


144  OUR  FEDERAL  RELATIONS. 

government.  They  must,  therefore,  have  had  a  perfect  knowledge 
of  the  meaning  of  "the  general  welfare,"  as  used  in  the  Articles  of 
Confederation,  and  also  of  the  powers  intended  to  be  exercised^ 
and  that  had  been  exercised  since  March,  1781,  by  the  Confedera- 
tion, to  attain  to  the  condition  of  "general  welfare"  as  an  object. 
The  fact  that  they  used  the  term  "general  welfare"  in  the  Consti- 
tution, that  they  then  formed,  in  the  same  connection,  that  it  had 
been  used  in  the  Articles  of  Confederation  raises  a  violent  pre- 
sumption, that  they  designed  it  to  have  the  same  meaning,  and  to 
be  attained  in  the  same  way.  That  connection  was  in  the  pream- 
ble and  taxation  clause  of  the  Constitution,  just  as  it  had  been 
used  in  the  Articles  of  the  Confederation,  in  the  clause  stating  the 
objects  of  the  Confederation,  and  in  the  taxation  clause.  It  is  an 
established  rule  of  construction  in  courts,  that  where  a  word  or 
expression  has  been  used  in  a  constitution,  or  statute,  which  has 
had  its  meaning  defined  by  judicial  interpretation,  or  by  con- 
temporaneous and  continued  action  upon  it,  it  will  be  presumed 
to  have  the  same  meaning,  when  it  is  afterwards  used  in  the  same 
connection,  in  the  formation  of  a  constitution,  or  in  the  enactment 
of  a  law  upon  the  ame  subject,  or  in  the  enactment  of  the  same 
law,  changed  only  in  other  provisions.  The  fact  that  the  Consti- 
tution provided  for  a  government  with  more  and  greater  powers 
for  the  same  Sf^tes  in  the  Union,  was  no  reason  why  the  words 
"general  welfare"  did  not  have  the  then  usual  and  well-established 
meaning,  that  it  had  in  the  Articles  of  Confederation,  especially 
as  the  Constitution  provided  for  a  limited  government,  with  its 
powers  and  objects  especially  enumerated,  just  as  it  was  done  in 
creating  the  Confederation.  There  is  an  unanswerable  objection 
to  the  position,  that  the  "general  welfare"  of  the  United  States  in- 
cluded in  its  meaning  the  well-being  of  the  people,  in  their  paivate 
pecuniary  interests,  as  well  as  the  well-being  of  the  government  of 
the  United  States,  in  the  administration  of  it  by  its  departments 
and  officers. 

For  the  laying  and  collecting  of  taxes  of  some  kind,  and  the  dis- 
bursement of  the  money  collected  by  the  laws  of  Congress,  em- 
brace nearly  everything  that  the  government  can  do,  either  under 
its  delegated  or  under  its  assumed  powers.  There  are,  indeed, 
very  few  objects  of  any  kind,  that  the  government  has  ever  accom- 
plished, that  did  not  require  for  its  accomplishment,  the  laying 
and  collecting  of  taxes  of  some  kind,  in  some  manner,  or  the  ex- 
penditure of  money  collected.  It  would  have  been  useless,  there- 
fore, to  have  conferred  upon  Congress  any  other  power  than  that 
in  the  taxation  clause,  "to  lay  and  collect  taxes,  imposts,  duties, 
and  excises,  to  pay  the  debts,  and  to  provide  for  the  common  de- 
fense and  general  welfare  of  the  United  States." 

And  a  part  of  this  clause  might  have  been  omitted,  for  it  would 


OUR    FEDERAL    RELATIONS.  145 

have  been  providing  for  the  general  welfare  "to  pay  the  debts," 
and  also  "to  provide  for  the  common  defense." 

It  would  have  been  for  the  general  welfare  of  the  United  States 
to  collect  and  expend  money  to  establish  a  navy,  and  to  raise  an 
army,  when  needed,  to  establish  post  roads  and  postoffices,  to 
establish  federal  courts,  to  coin  money,  and  to  execute  every  other 
power  expressly  or  impliedly  delegated  to  Congress  or  to  any  other 
department  or  officer. 

The  Congress  might  also  deem  it  to  be  for  the  general  welfare 
to  collect  and  expend  money  to  encourage  agriculture,  sheep  rais- 
ing for  wool,  the  distribution  and  breeding  of  fish  for  food,  the 
healing  of  diseased  domestic  animals,  the  establishment  of  agri- 
cultural and  mechanical  schools,  and  experimental  stations,  an 
educational  bureau,  and  an  agricultural  department;  to  increase 
commerce  by  subsidizing  ship  lines,  to  send  vessels  in  search  of 
the  north  pole,  and  numerous  other  such  objects,  stated  in  the 
first  part  of  this  lecture,  not  provided  for  in  the  Constitution, 
otherwise  than  by  their  being  considered  to  be  for  the  general  wel- 
fare, to  aid  in  the  establishment  of  factories  in  the  country,  which 
could  be  effectually  done  by  an  indirection,  as  may  be  seen  by  an 
examination  of  the  law  creating  a  tariff  for  their  protection.  By 
the  same  sort  of  indirection,  national  banks  are  given  a  monopoly 
in  the  banking  business,  by  taxing  State  banks  out  of  existence. 

This  limited  and  imperfect  reference  to  what  Congress  has  done 
suggests  the  query,  what  is  it  that  Congress  can  not  do  to  provide 
for  the  general  welfare  of  the  United  States  ? 

Republicanism,  a  hundred  yeare  ago,  was  understood  to  be  the 
control  of  the  whole  body  of  the  people  in  a  country,  by  their 
participation  in  the  public  affairs,  relating  to  their  government. 

Democratic  representative  republics  were  then  formed  in  Amer- 
ica upon  the  theory,  that  by  giving  each  man  an  equal  voice  in 
the  enacting  and  execution  of  the  laws,  by  which  he  would  be 
governed,  he  would  thereby  be  able  to  secure  to  himself  equal 
rights,  and  to  protect  himself  from  unequal  burdens,  by  the  action 
of  the  government. 

One  hundred  years  experience  has  so  far  most  signally  failed  to 
verify  the  correctness  of  that  theory.  It  has  been  found,  that  the 
written  Constitutions  of  a  republic  may  be  so  construed,  as  to 
make  the  government  administered  under  it  an  instrument  for  dis- 
tributing benefits  to  the  few  favored  persons,  and  for  imposing  un- 
equal and  depressing  burdens  upon  the  great  body  of  the  people, 
the  same  as  it  may  be  done,  and  most  usually  has  been  done,  by 
tyrannical  monarchies. 


146  OUR    FEDERAL    RELATIONS. 


A  PUBLIC  LECTURE. 
[Delivered  in  the  University,  1887,  by  O.  M.  Roberts,  Law  Professor.} 


On  the  Violations  of    the    Right    of    Private    Property  by 
American  Governments,  and  Their  Consequences. 


Tfie  right  of  private  property  consists  in  the  free  use  and  dispo- 
sition of  property  by  its  owner,  subject  to  the  rule  that  it  must  be 
so  used  or  disposed  of  as  not  to  infringe  upon  or  impair  the  rights 
of  property  or  of  the  person  of  others.  This  related  to  the  rule 
as  between  individuals  in"  a  community.  It  is  subject  to  some 
qualifications  when  applied  to  the  relation  between  government 
and  the  individual.  This  relation  was  not  settled  in  England 
until  there  had  been  numerous  agitations  and  struggles  between 
the  king  and  his  subjects.  The  English  people  claimed  certain 
absolute  rights  as  having  been  possessed  by  them  immemorially, 
which  their  monarchs  frequently  deprived  them  of.  The  barons 
with  their  retainers  took  to  arms^and  wrested  from  King  John  the 
concessions  relating  to  those  rights,  so  claimed,  as  are  contained 
in  magna  charta,  in  which  he  bound  himself  as  their  sovereign 
that  "no  freeman  shall  be  taken,  or  imprisoned,  or  dissized,  or  out- 
lawed, or  banished,  or  in  any  ways  destroyed,  nor  will  the  king 
pass  upon  him  or  commit  him  to  prison  unless  by  the  judgment  of 
his  peer  or  the  law  of  the  land."  This  did  not  assume  to  confer 
rights  upon  the  people,  but  was  a  recognition  of  their  previous 
existence,  and  a  solemn  pledge  that  they  should  not  be  violated. 
This  was  with  some  addition  confirmed  by  the  charter  of  Henry 
III.,  and  for  similar  objects  were  procured  the  petition  of  right 
and  bill  of  rights  afterward.  Thus  was,  in  the  course  of  time,  the 
full  recognition  of  the  absolute  rights  of  Englishmen  established, 
being  their  civil  social  rights,  which  commentators  have  designat- 
ed as  the  rights  ol  personal  security,  the  right  of  personal  liberty 
and  the  right  of  private  property. 

The  American  colonies  claimed  to  have  brought  with  them  and 
to  have  possessed  ihe  fundamental  civil  rights  as  subjects  of  the 
British  crown,  and  when  they  set  up  independent  State  govern- 
ments by  delegations  of  powers,  conferred  by  the  people  of  such 
State  as  a  sovereign  power,  they  sought  to  secure  these  fundamen- 


OUR    FEDERAL    RELATIONS.  I47 

tal  rights  from  being  violated  by  the  government  created  by  them 
by  numerous  provisions  in  bills  of  rights,  and  in  other  provisions 
in  the  Constitutions  adopted  by  them.  It  is  worthy  of  notice  that 
the  English  people  sought  to  protect  the  fundamental  rights 
against  any  violation  by  the  executive,  the  king,  being  willing  to 
hold  them  subject  to  the  laws  passed  by  parliament,  and  to  the  de- 
cision of  the  courts;  but  the  Americans  sought  to  protect  them 
from  violation  by  the  legislature,  as  well  as  other  departments. 

The  States  in  the  formation  of  their  government  afterward 
added  another  fundamental  right,  which  is  the  right  of  full  toler- 
ation and  freedom  of  religion.  These  rights  of  personal  security, 
personal  liberty  and  freedom  of  religion,  have  generally  been  so 
amply  protected  by  laws  and  the  decisions  of  courts  in  this  coun- 
try as  to  require  no  special  consideration  of  them  at  present,  not 
being  embraced  in  the  objects  of  the  discussion  here.  The  ten- 
ure of  the  private  property  of  the  individual  is  necessarily  subject 
to  qualifications  consequent  upon  ordinary  and  constitutional 
action  of  the  government,  the  instances  of  which  will  be  enumer- 
ated. 

The  private  property  of  an  individual  may  be  taken  from  him 
by  the  government  of  the  State,  directly  or  indirectly,  for  public 
use  upon  compensation  being  made  to  him,  by  the  right  of  emi- 
nent domain.  Over  one  league  of  land,  being  private  property, 
was  taken  by  the  State  of  Texas,  upon  which  the  seat  of  govern- 
ment was  located.  The  State  takes  the  lands  of  individuals  upon 
which  to  establish  public  roads  by  authority  given  to  counties  and 
railroad  companies.  It  has  been  held,  however,  that  only  so  much 
as  may  be  necessary  for  the  specified  public  use  can  be  thus  taken, 
and  also  that  the  property  of  one  person  cannot  under  this  right 
be  taken  for  the  purpose  of  bestowing  it  upon  another  for  his  pri- 
vate benefit.  So  the  government  can  take  away  property  through 
the  powers  given  to  the  courts,  when  some  other  person  than  the 
one  possessed  of  it  shows  his  right  to  it,  or  when  it  is  done  to  re- 
cover debts,  damages,  forfeitures,  fines,  penalties  and  taxes  due 
and  unpaid.  Such  are  the  grounds  upon  which  the  government 
can  righfully  by  force  take  away  the  private  property  of  an  indi- 
vidual without,  and  if  necessary,  contrary  to  his  consent. 

Upon  none  of  these  grounds  has  there  been  such  an  infringe- 
ment of  the  right  of  property  as  to  re(iuire  comment,  except  that 
of  taxation,  which  will  be  specially  referred  to  hereafter.  Even  a 
cursory  review  of  some  of  the  acts  af  our  government,  federal  and 
State,  will  demonstrate  that  the  fundamental  right  of  property  hat 
not  been  respected  in  the  same  degree  as  in  others  with  which  i 
has  been  classed.  The  breaches  upon  this  right  have  been  extend- 
ed to  producing  inequalities  both  in  the  acquisition  of  property 
and  the  tenures  to  it  when  ac(iuired,  and  even  to  indirectly  and 
purposely  taking  from  one  person  and  giving  it  to  another  for  his 


148  OUR  FEDERAL  RELATIONS. 

private  benefit.  Our  State  Constitution  sought  to  establish  equal- 
ity in  the  acquisition  of  it,  by  inhibiting  monopolies  expressly, 
which  is  where  the  government  confers  upon  a  private  individual 
the  exclusive  right  ro  make  profits  by  following  a  pursuit  which  is 
ordinarily  followed  by  other  private  individuals  for  profit.  That 
limitation  is  not  imposed  expressly  upon  the  government  of  the 
United  States  in  its  Constitution. 

The  State  of  Maryland  passed  a  law  imposing  a  tax  upon  the 
branch  of  the  bank  of  the  United  States.  The  Supreme  Court 
of  the  Unired  States  judged  that  law  to  be  contrary  to  the 
Constitution  of  the  United  States  and  laws  thereof,  and  exempt- 
ed it  from  taxes,  though  it  was  an  institution  carried  on  in 
Maryland  to  make  profit  by  and  through  the  means  invested  in 
it,  being  the  private  property  of  the  corporator.  Other  banks 
that  may  have  been  chartered  by  Maryland,  and  were  doing  the 
same  business  for  profit,  had  to  pay  the  same  taxes  imposed 
upon  them. 

I  am  not  discussing  the  right  or  wrong  of  that  decision,  but 
only  seek  to  point  out  an  instance  of  inequality  in  the  acquisi- 
tion and  tenure  to  or  terms  of  holding  a  similar  sort  of  property 
used  for  making  profits  by  different  individuals  in  Maryland, 
produced  by  governmental  action.  Again,  the  federal  govern- 
ment established  "national  banks,"  which  at  present  number, 
perhaps  over  2000  in  the  different  States,  and,  as  it  is  said 
purposely,  taxed  all  the  other  banks  created  by  the  States  out 
of  existence.  In  other  words,  they  had  to  close  out  and  abandon 
the  business  of  banking  because  they  would  not  make  profits  as 
the  national  banks,  could  on  account  of  the  heavy  tax  imposed  on 
them  that  was  not  equally  imposed  on  the  national  banks.  Here 
was  a  case  of  monopoly  in  banking  and  an  inequality  in  the  tenure 
to  private  property,  as  between  individuals  in  the  same  State  pur- 
suing the  same  business  for  private  gain  to  the  individual.  Similar 
results  are  produced  by  the  States  passing  laws  for  private  corpo- 
rations, for  private  purposes  for  private  gain,  only  in  pursuits 
equally  followed  by  private  individuals  and  partnership. 

Under  the  laws  creating  them  the  members  of  the  corporations 
have  their  responsibility,  and  liability,  in  carrying  on  their  busi- 
ness, limited  to  the  amount  of  the  property  invested  and  kept  in 
the  business,  whereas  the  responsibility  and  liability  of  the  indi- 
vidual, and  of  the  members  of  the  partnership  engaged  in  the  same 
business  exactly,  and  for  the  same  purpose  of  private  gain  extends 
to  the  whole  of  his  or  their  property,  whether  it  is  engaged  in  that 
business  or  not.  Texas  has  now  probably  over  one  thousand  such 
private  corporations,  with  a  continued  increase  in  number,  as  their 
extra  advantages  conferred  by  the  government  become  more  and 
better  known.  The  members  of  such  favored  companies,  in  along 
course  of  prosperous  business,  may  store  away  by  dividends  hand- 


OUR    FEDERAL   RELATIONS,  I49 

some  fortunes,  which  the  sheriff  dare  not  touch,  when  by  reckless 
speculation  in  their  efforts,  perhaps,  to  run  down  the  competition 
of  individuals  or  partnerships  in  the  same  business  the  concern 
bre.aks,  and  is  found  to  be  insolvent.  Here  the  State  has  made  a 
pla'n  difference,  in  the  tenure  of  terms  of  holding  private  property, 
between  individuals  of  the  State,  pursuing  the  private  business  for 
private  gain.  Though  this  consequence  may  attend  all  corpora- 
tions, it  can  be  justified  only  when  it  is  created  as  a  governmental 
a^ncy,  to  accomplish  a  public  purpose,  though  it  may  be  pursued 
for  private  benefit  by  the  corporators,  as  in  the  case  of  a  railroad 
company  incorporated  by  a  law  of  the  State,  or  a  school  or  some 
charitable  institution.  But  in  the  case  of  a  company  for  raising 
cattle,  for  buying  and  selling  lands,  building  houses  and  hundreds 
of  other  private  employments,  it  is  perversion  of  the  true  objects  of 
an  incorporation,  to  give  them  its  advantages  over  other  individu- 
als following  the  pursuits.  Under  the  government  of  the  United 
States  its  bonds  and  treasury  notes,  used  as  money,  amounting  to 
many  hundreds  of  millions  of  dollars  in  value,  are  exempt  from  tax- 
ation by  the  States,  though  owned  as  private  property  by  the  citi- 
zens of  those  States.  This  is,  in  effect,  giving  a  bonus  to  the 
amount  of  tax  exempted  to  owners  of  them  by  just  the  increase  in 
value  given  to  them  by  the  government  over  the  value  of  other 
bonds  and  money  in  the  hands  of  citizens  that  are  taxed. 

Passing  over  boiinties  given  to  ship  lines,  ship  building  for  our 
coastwise  trade,  and  to  various  other  objects  favored  directly  or  in- 
indirectly  by  the  government  in  this  country,  both  by  legislation 
and  by  the  decisions  of  ^he  courts,  it  may  be  well  to  consider  at 
once  the  subject  of  taxation,  which  has  been  used  as  the  means  for 
the  most  flagrant  violation  of  the  most  fundamental  rights  of  pri- 
vate property.  It  is  said  by  Justice  Cooley  in  his  work  on  Con- 
stitutional Limitations,  that  an  unlimited  power  to  make  everything 
lawful  which  the  legislature  might  see  fit  to  call  taxation  would  be, 
when  plainly  stated,  an  unlimited  power  to  plunder  the  citizens. 
This  strong  expression  is  but  a  common  sense  utterance  in  behalf 
of  the  right  of  private  property.  In  every  government,  therefore, 
where  there  is  any  pretense  to  the  claim  of  freedom  from  oppres- 
sion there  ought  to  be  found  some  limitation  to  the  right  of  taxa- 
tion more  potent  than  the  mere  discretion  of  the  legislative  body. 

In  the  present  Constitution  of  the  State  there  is  a  limitation 
plainly  expressed  as  follows:  "The  legislature  shall  not  have  the 
right  to  levy  taxes  or  impose  burdens  upon  the  people,  except  to 
raise  revenue  sufficient  for  the  economical  administration  of  the 
government,  in  which  may  be  included  the  following  purposes  : 
The  payment  of  interest  on  the  public  debt,  the  erection  and  re- 
pair of  public  buildings,  for  the  benefit  of  the  sinking  fund,  for  the 
support  of  the  public  schools  and  the  asylums,  for  the  payment  of 
officers    of  the  governmet,  for  the  enforcement  of  (juarantine,  and 


150  OUR    FEDERAL    RELATIONS. 

the  protection  of  the  frontier."  And  further  it  is  provided,  that 
"the  legislature  shall  have  no  power  to  make  any  grant,  or 
authorize  the  making  of  any  grant  of  public  money  to  any  individ- 
ual, association  of  individuals,  municipal  or  any  other  corporation 
whathever;  provided,  that  this  shall  not  be  so  construed  as  to 
prevent  the  grant  of  aid  in  case  of  public  calamity."  And  further, 
"taxes  shall  be  levied  and  collected  by  general  laws  and  for  public 
purposes  only."  Those  with  other  imitations  upon  the  action  of 
the  legislature,  that  might  be  quoted,  point  specifically  to  the  object 
of  taxation  as  being  to  raise  revenue  with  which  to  carry  on  the 
government  of  the  State.  A  tax  so  levied  as  to  effect  another  and 
different  object  under  the  pretense  of  raising  such  revenue,  would 
be  a  preversion  of  the  powers  of  the  legislature,  and  be  a  violation 
of  the  spirit  of  the  Constitution  of  the  State.  Such  should  be  the 
rule  under  any  government  of  limited  powers.  While  our  Consti- 
tution so  clearly  and  specifically  limited  the  power  of  taxation, 
other  provisions  in  it  have  unfortunately  thrown  widely  open  the 
door  for  the  creation  of  almost  all  sorts  of  private  corporations  for 
private  purposes.  The  power  of  taxation  delegated  to  Congress  is 
contained  in  the  Constitution  of  the  United  States  in  the  words  as 
follows:  "The  Congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts  and  excises,  to  pay  the  debts  and  provide  for  the 
common  defense  and  general  welfare  of  the  United  States."  The 
United  States  was  the  name  of  the  government  then  in  existence 
under  the  articles  of  confederation,  and  it  was  continued  as  the 
name  of  the  more  perfect  union  created  by  the  Constitution  of  the 
United  States.  If  this  term  "general  welfare  of  the  United  States" 
should  be  construed  to  mean  welfare  of  the  government  of  the 
United  States  in  all  of  its  operations  performed  under  and  in 
accordance  with  the  powers  delegated  to  it  as  expressed  in  the 
Constitution,  then  it  should  be  a  plain  limitation.  The  States 
might  well  be  supposed  to  have  been  willing  to  have  granted  the 
power  of  tnxation  to  Congress.  While  it  is  diflBcult  to  believe  that 
under  existing  fear  of  an  absolute  power  of  taxation  without  limit, 
which  they  had  but  lately  gone  through  a  desperate  struggle  to  get 
rid  of,  they  should  have  intended  to  have  conferred  upon 
Congress  a  power  of  taxation  to  provide  for  the  general  welfare  of 
the  people  in  several  States  in  reference  to  private  pecuniary  affairs 
and  industrial  pursuits,  still  it  has  been  believed,  and  Congress 
has  repeatedly  acted  and  continues  to  act  on  it,  thereby  making 
the  government  a  paternal  government  for  taking  care  of  the 
private  interest  of  the  people,  according  to  discretion,  as  to  what 
measures  would  contribiute  to  the  general  welfare  of  the  private 
interests  of  the  people. 

The  British  parliament  is  limited  only  by  the  same  discretion 
in  reference  to  the  same  objects,  which  is  simply  no  constitutional 
limitation  at  all  of  the  power    of  taxation   in    either    government. 


OUR    FEDERAL   RELATIONS,  151 

The  promotion  of  the  private  interests  of  the  people  has  been 
effected  in  two  modes  of  congressional  action,  directly  by  spend- 
ing the  people's  money  raised  by  taxation  in  bounties  and  other- 
wise, and  indirectly  by  levying  and  collecting  duties  on  import. 
Under  one  or  the  other  mode  Congress  has  promoted  the  private 
interests  of  individuals  and  classes  of  individuals  in  their  private 
pursuits,  from  the  largest  to  the  smallest  objects,  and  embracing  in 
extent  almost  the  whole  range  of  industries  carried  on  in  this  country, 
from  helping  merchants  extend  their  foreign  trade  down  to  dairy- 
men making  butter,  and  so  numerous  and  diversified  are  they  that 
an  enumeration  and  explanation  of  them  would  fill  a  good  sized 
volume.  A  good  survey  of  them  would  exhibit  the  most  remark- 
able and  the  most  fertile  inventive  genius  of  the  American  people, 
that  has  perhaps  never  before  been  displayed  by  any  people,  by 
which  they  have  been  enabled,  with  only  a  few  delegated  powers 
carefully  specified  and  to  them  expressly  limited  in  a  written  con- 
stitution, to  expand  them  by  subtle  constructions  into  a  powerful 
national  goverment,  capable  of  fostering  the  whole  range  of  the 
private  interests  and  pursuits  of  the  people,  equally  as  extensive 
and  minute,  and  in  the  same  manner  as  it  has  been  done  by  the 
monarchies  of  Europe  with  absolute  unrestrained  powers  of  pro- 
moting the  private  interests  and  pursuits  of  the  individuals,  guided 
and  limited  only  by  their  discretion  as  to  the  means  used  in  doing 
it.  Under  this  construction  the  true  object  of  taxation — to  raise 
and  collect  revenue  with  which  to  defray  the  expenses  of  the 
government — has  often  been  lost  sight  of.  It  has  been  imposed  in 
a  way  to  effect  another  object  relating  to  the  private  interests  of 
individuals  than  to  raise  the  revenue,  and  even  sometimes  in  away 
to  prevent  the  raising  of  revenue,  to  enable  private  individuals  to 
make  profits  by  it  in  their  private  pursuits. 

A  notable  instance  oi  this  is  what  is  known  as  a  tariff  for  the 
protection  of  home  manufacturerers.  That  was  professedly  invent- 
ed to  nurse  those  factories  in  their  helpless  infancy,  eighty  years 
ago  or  more.  It  would  seem  to  be  useless  now,  after  so  long  nurs- 
ing, to  ask  when  the  infants  will  be  able  to  stand  alone,  but  as  that 
claim  for  favor  might  be  barred  by  lapse  of  time,  another  has  been 
anounced,  as  we  will  see  presently.  For  instance,  a  certain  kind 
of  cloth  is  manufactured  both  in  Europe  and  the  United  States, 
Congress  imposes  a  duty  of  loo  per  cent,  upon  its  original  cost  in 
Europe,  and  in  passing  through  the  custom-house  at  New  York 
the  importer  pays  loo  per  cent,  to  get  it.  Twenty  per  cent,  impos- 
ed would,  as  it  is  known,  raise  greatly  more  revenue  if  that  was 
the  object,  and  that  20  per  cent,  would  itself  be  incidentaly  a  bonus 
in  the  way  of  legitimate  protection  to  the  liome  manufacturer  in 
the  sale  of  his  cloth.  Then  why  impose  100  per  cent.?  The 
answer  is  to  give  the  home  manufacturer  80  per  cent,  on  the  sale  of 
his  cloth  more  than  was  necessary  to  raise  revenue.     Who  pays  to 


152  OUR    FEDERAL    RELATIONS. 

the  home  manufacturer  this  80  per  cent,  more  than  necessary  to 
raise  revenue?  The  answer  is  the  consumer  who  buys  it  from  him, 
the  price  paid  being  80  per  cent,  more  than  he  could  have  bought 
the  cloth,  whether  it  had  been  manufactured  in  Europe  or  America, 
if  a  duty  for  revenue  only  had  been  imposed  on  it.  This  expla- 
nation is  sufficiently  accurate  for  my  present  purpose,  which  is  to 
show  that  the  government  has  purposely  in  this  transaction  in  effect 
taken  money  from  one  man,  the  consumer,  and  given  it  to  another, 
the  American  manufacturer.  That  is  the  practical  fact,  and  the 
object  of  doing  it,  whether  right  or  wreng,  constitutional  or  un- 
constitutional, does  not  alter  the  practical  fact,  which  presents  a 
clear  case  of  flagrant  violation  of  the  right  of  private  property  by 
the  of  government  to  the  advantage  of  one  individual  and  to  the 
disadvantage  of  another  in  reference  to  their  private  pecuniary 
interests. 

I  will  not  stop  to  consider  all  the  numerous  things  upon  which  a 
tariff  for  protection  is  imposed.  It  is  estimated  that  where  the  gov- 
ernment gets  $1  of  revenue  by  it  the  home  manufacturer  gets  $5  by 
it,  by  selling  five  times  as  many  such  goods  as  are  imported.  How 
much  money  does  he  make,  when  the  government  is  annually  rais- 
ing hundreds  of  millions  of  dollars  by  duties  so  levied?  Now,  what 
has  been  the  consequence  of  this  course  of  action?  For  more  than 
fifty  years  past,  and  even  up  to  the  present  time,  it  has  been  open- 
ly announced  in  the  platforms  of  parties,  in  presidential  messages, 
and  in  speeches  in  Congress  and  elsewhere,  that  one  of  the  main 
objects  of  this  protective  tariff  was  to  keep  up  the  price  of  Ameri- 
can labor  above  the  price  of  pauper  labor  in  Europe,  or  in  other 
words,  it  is  a  bonus  paid  by  the  consumer  as  well  for  the  benefit 
of  the  laborer  as  that  of  the  capitalist  for  whom  he  works.  This  is 
the  lesson  that  the  laborer  has  been  taught  from  the  highest  author- 
ity, and  as  the  schoolmaster  has  been  abroad  in  the  land,  he  can 
now  understand  it.  He  knows  that  the  bonus  in  money  in  this  case, 
as  well  as  in  all  other  governmental  advantages  given,  comes  into 
the  hand  of  the  capitalist,  and  the  law  makes  no  provision  for  him 
to  get  his  share  of  it,  which  he  has  so  often  and  so  eloquently  been 
told  about.  It  has  come  to  him  through  the  discretion  of  the  cap- 
italist, if  it  comes  at  all,  so  far  as  the  law  is  concerned.  That  is  a 
frail  security  for  its  coming,  and  therefore  laborers  are  now,  and 
have  been  for  some  time  past,  putting  their  heads  together  to  de- 
vise a  more  potent  means  than  discretion,  by  making  it  to  depend 
on  the  necessities  and  interests  of  the  capitalists  to  make  fair  di- 
vision of  the  favors  of  the  government.  It  is  only  necessary  for 
laborers  to  look  around  and  see  that  wherever  and  whenever  large 
capital  is  accumulated  in  the  hands  of  a  few  persons,  its  owners 
apply  for  some  sort  of  favors  to  it  from  the  government,  by  press- 
ing into  the  lobbies  of  Congress,  or  of  the  legislatures  of  States,  to 
obtain  it.     Even  the  labor  saving  machinery,  patented  by  the  gov- 


OUR    FEDERAL   RELATIONS.  153 

ernment,  falls  into  the  hands  of  the  capitalists  for  whom  they 
labor,  diminishing  their  chances  for  employment,  for  a  time, 
at  least.  They  see  and  have  seen  capitalists  of  all  classes  of  inter- 
ests, combining  in  different  ways,  to  keep  up  prices  and 
to  keep  down  the  price  of  labor.  They,  seeing  and  feel- 
ing the  effects  of  such  combinations,  are  now,  and  have  been, 
combining  to  protect  the  interests  of  labor,  knowing  that  it  is  by 
the  use  of  their  labor  that  profits  can  be  made  by  capitalists. 
Hence  labor  unions  of  various^sorts,  and  by  different  names,  have 
been  formed  all  over  the  United  States,  and  are  still  increasing, 
perfecting  the  co-operative  combinations.  They,  too,  are  prepar- 
ing to  apply  to  Congress  and  the  legislatures  for  some  government- 
al advantages,  at  least  for  the  defense  of  their  peculiar  interest, 
against  the  mere  discretion  of  capitalists  who  make  profits  out  of 
their  work.  All  this  effort  is  not  so  much  because  the  wages  of 
labor  are  ordinarily  inadequate  or  less  than  they  were  formerly  as 
because  labor  has  no  security  and  no  advantages  given  to  them  by 
the  government,  as  they  can  see  that  accumulated  capital  has. 
Thus  capital  and  labor  stand  in  direcf  antagonism,  each  arrayed 
in  combinations  all  over  the  country.  When  the  combustible  ma- 
terials are  made  ready  for  it,  a  little  spark  rnay  make  a  great  con- 
flagration, as  witnessed  in  the  year  A.  D.  1886.  The  'longshore- 
men, who  had  been  given  the  monopoly  of  labor  on  the  wharves 
at  Galveston  by  a  statute  of  the  last  legislature  of  Texas,  strike  for 
higher  wages  in  loading  and  unloading  vessels,  which  was  refused. 
A  man  in  Marshall  is  refused  employment  on  the  Texas  and  Paci- 
fic railroad  there;  the  Knights  of  Labor  take  the  matter  up  for  ad- 
justment and  apply  their  remedies  without  effect. 

The  struggle  then  goes  to  the  Gould  combination  of  railroads, 
carrying  it  to  Arkansas,  Missouri,  Illinois  and  on  to  the  other 
States,  and  other  matters  of  controversy  are  brought  in.  Millions 
worth  of  property  is  involved  and  endangered,  hundreds  of  thou- 
sands of  laborers  are  excited  to  fever  heat,  private  property  is  vio- 
lently seized  and  the  wheels  of  commerce  are  stopped,  and  even 
personal  violence  and  murder  attend  this  desperate  struggle;  the 
peace  officers  and  militia  of  the  States  and  the  courts  are  called 
into  requisition  for  the  protection  of  private  property  and  to  keep 
the  peace. 

Amidst  the  fury  of  excitement  the  tendency  of  sentiment  almost 
unconsciously  was  aroused  against  all  sorts  of  accumulated  wealth 
without  taking  time  for  discrimination  between  the  necessary  and 
proper  advantages  given  to  public  agencies,  created  by  govern- 
ment for  public  purposes,  and  those  advantages  that  are  neither 
necessary  nor  proper. 

The  anarchists  in  Chicago,  falsely  supposing  that  this  great 
movement  was  being  made  in  sympathy  with  their  designs,  broke 
out  into  deeds  of  outrage  and  murder.    Under  this  distressing  con- 


154  OUR    FEDERAL    RELATIONS. 

fusion,  it  is  not  surprising  that  remedies  should  have  been  suggest- 
ed without  a  calm  consideration  of  the  consequences  to  which 
they  wou2d  lead.  One  of  them  is  co-operation  between  capital  and 
labor.  That  is  simply  a  partnership  formed  by  mutual  agreement 
that  the  government  can  have  nothing  more  to  do  with  than  with 
other  partnership  business. 

Another  is  for  the  government  to  own  and  run  the  railroads.  If 
the  reason  for  that  is  to  secuie  to  labor  more  adequate  remunera- 
tion than  will  be  given  by  capitalists,  the  same  reason  would  force 
the  government  to  own  and  carry  on  all  other  employments  re- 
quiring large  numbers  of  laborers,  such  as  factories,  mining  opera- 
tions, iron  works,  etc. 

We  are  not  now  prepared  to  contemplate  the  conditions  and  op- 
erations of  any  government  placed  in  such  a  position.  The  most 
favorable  remedy  that  has  been  proposed  by  statesmen,  including 
the  conservative  President,  Grover  Cleveland,  is  by  arbitration, 
provided  for  by  the  government.  Four  of  the  States — Iowa,  Kan- 
sas, Massachusetts  and  New  York — have  already  made  haste  to 
arbitrate  the  differences  occurring  between  employers  and  their 
employes.  These  laws  provide  for  a  board  of  arbitration,  to  which 
the  disputants  may  agree  to  submit  their  differences.  In  the  first 
three  the  board,  after  being  selected  by  action  of  the  parties,  is 
commissioned  or  licensed  to  act  by  a  court  of  the  State. 

In  New  York  the  board  is  appointed  by  the  governor  for  the 
year.  In  Massachusetts  the  submission  can  only  be  made  in  case 
the  subject  may  not  be  made  the  subject  of  a  civil  suit 
or  bill  in  equity — that  is,  if  the  question  is  one  of  ju- 
dicial cognizance,  the  parties  must  apply  to  the  courts  and 
not  to  this  board  for  settlement.  In  Iowa  and  Kansas  the 
award  is  simply  final  and  conclusive  on  the  parties  in  ordinary 
cases,  but  when  an  award  is  made  and  accorded  a  specific  sum  of 
money,  the  proper  court  may  upon  motion  enter  judgment  there- 
on; so  that  in  those  States  the  arbitration  includes  matters  of  debt 
found  to  be  due,  which  is  of  judicial  cognizance,  as  in  other  cases 
of  arbitration,  as  that  remedy  is  well  known  as  a  substitute  for  a 
suit  and  trial  in  court  recognized  by  all  of  the  States.  It  is  obvi- 
ous, however,  that  in  all  of  those  States,  the  main  object  in  pass- 
ing these  statutes  is  the  same  as  that  expressed  in  the  statute  of 
Massachusetts,  which  is  to  provide  an  arbitration  for  such  cases  as 
are  not  of  judicial  cognizance  by  a  suit  at  law  or  by  a  bill  in  equi- 
ty in  a  court  having  jurisdiction  of  the  subject  matter  of  the  suits 
or  bin.  The  matters  to  be  settled  are  such  as  where  the  employes 
demand  of  their  employers  an  increase  of  lo  per  cent,  in  their 
wages,  or  the  employers  propose  te  reduce  the  wages  of  their  em- 
ployes lo  per  cent,,  or  increase  the  time  or  amount  of  labor  on  the 
same  wages,  or  where  the  employes  demand  that  a  laborer  who  has 
been  dismissed  shall  be  taken  back  in  the  service  of  the  employer 


OUR    FEDERAL    RELATIONS.  155 

again,  or  where  there  shall  be  a  disagreement  about  anything  re- 
lating to  the  employment  where  a  change  is  sought  by  either  side 
and  not  acceded  to  by  the  other.  They  all  contemplate  the  mak- 
ing of  an  executory  contract  between  the  parties  concerned,  to  be 
by  each  of  them  performed  in  the  future  for  an  indefinite  time. 
The  making  of  an  executory  contract  between  two  persons  about  a 
matter  of  private  business  is,  and  must  be,  discretionary  on  both 
sides,  and  is  therefore  beyond  and  outside  of  any  governmental 
action  whatever  under  the  constitutional  powers  of  our  govern- 
ment. 

The  parties  may  call  in  private  assistance  by  reference  to  others 
to  help  the  discretionary  adjustment  of  the  contract  between  them, 
but  they  have  no  right  to  call  for  any  interposition  of  the  govern- 
ment, in  any  of  its  departments,  to  help  them  in  adjustments,  be- 
cause no  departments  of  our  government  are  invested  with  any 
powers  which  relate  in  any  degree  to  the  discretionary  act  of  mak- 
ing an  executory  contract  by  and  between  two  persons  about  a 
matter  of  private  business. 

The  government  may  prescribe  what  shall  be  a  valid  contract  or 
what  shall  not,  or  how  it  shall  be  evidenced  to  be  valid,  or  when  a 
contract  is  broken  the  proper  remedy  in  court  may  be  given,  all  of 
which  are  rules  of  action,  prescribed  and  contemplated;  or  pre- 
suppose the  discretionary  action  of  the  parties  to  have  been  pre- 
viously exercised  in  making  the  contract  without  any  interference, 
hindrance  or  assistance  of  the  government  in  the  making  of  it.  To 
bring  this  subject  to  the  test  by  a  homely  example,  the  legislature 
has  no  right  to  swap  horses  for  people,  and  it  follows  that  it  has  no 
right  to  pass  a  law  authorizing  the  appointment  of  a  horse  jockey 
to  travel  over  the  country  to  help  people  swap  horses. 

The  judiciary  department  has  no  such  right,  nor  has  the  execu- 
tive department.  The  confusion  of  ideas  is  thrown  around  this 
proposed  remedy  by  misnaming  it  an  arbitration.  That  is  a  mis- 
nomer. An  arbitration  has  been  long  known  as  one  of  the  reme- 
dies to  redress  a  legal  inquiry  by  the  parties  themselves,  either 
with  or  without  the  aid  of  a  court. 

The  business  of  the  arbitrators,  like  that  of  a  court,  is  to  inves- 
tigate the  antecedent  facts  and  transactions  of  the  parties  in  rela- 
tion to  the  matter  in  dispute,  and  to  draw  their  conclusions  from 
them,  as  to  whether  one  of  the  parties  has  been  deprived  of  a  legal 
right  by  the  other,  and  if  so,  they  make  their  award  describing 
what  one  of  them  should  recover  of  the  other,  as  a  particular  piece 
of  property,  a  debt  or  damages  to  a  certain  amount,  jnst  as  it 
would  have  been  determined  by  the  verdict  of  a  jury,  had  the  case 
been  brought  into  court  by  suit,  and  provision  has  been  generally 
made  by  law,  to  have  the  award  made  the  judgment  of  a  court,  in 
whatever  court  would  have  had  jurisdiction  of  the  subject  matter, 
that  had  been  arbitrated.     It  is  obvious,  then,  that   the  proposed 


156  OUR    FEDERAL    RELATIONS. 

remedy,  so-called  arbitration,  has  no  analogy  in  substance,  to  the 
old  and  favored  remedy  by  arbitration,  authorized  by  our  laws. 
The  want  of  constitutional  authority  to  provide  such  a  remedy  for 
the  adjustment  of  such  matters  of  dispute,  as  have  been  previously 
mentioned,  may  be  illustrated  further,  by  tracing  out  the  effect  ot 
each  step  in  its  progress.  Supposing  the  law  to  be  passed  as  that 
in  Kansas,  and  the  disputants  to  have  selected  their  adjusters  (so- 
called  arbitrators).  It  is  made  by  the  law  the  duty  of  the  court  to 
issue  them  a  license,  or  commission,  to  act,  and  when  their  award 
is  made  and  presented  to  have  it  recorded. 

This  being  not  a  judicial  proceeding,  the  court  may  refuse  to 
issue  the  license,  and  also  refuse  to  have  the  award  recorded  in  court 
for  the  same  reason.  It  has  been  held  by  the  highest  judicial  au- 
thority, that  the  legislative  department  can  not  make  it  obligatory 
upon  a  court  to  do  an  act  not  judicial  in  its  character,  and  re- 
lating to  a  subject  of  which  the  court  had  no  jurisdiction.  But 
suppose  the  court  should  humor  the  effort  at  pacification,  and  is- 
sue the  license  and  record  the  award,  which  is  simply  the  adjusted 
executory  contract  made  by  the  parties,  which  is  declared  by  the 
law  to  be  final  and  binding  on  the  parties. 

What  legal  effect  is  given  to  this  contract  by  its  being  thus  re- 
corded in  a  court?  The  answer  is,  exactly  the  same,  and  no  more 
than  if  it  had  been  written  out  on  a  sheet  of  paper,  and  stuck  into 
the  pigeon-hole  of  some  friendly  lawyer's  desk,  who  had  it  in  his 
custody  for  safe  keeping.  Still  the  legislature  has  gone  through 
the  formality  of  passing  an  act  prescribing  particularly  all  the  pro- 
ceedings in  the  remedy,  and  the  court  has  given  it  the  sanction  of 
its  authority,  which  holds  out  the  delusive  appearance  that  the 
government  has  done  something  within  its  constitutional  authority, 
and  may  do  more  if  necessary. 

The  great  danger  is,  having  started  out  on  that  line,  emergen- 
cies may  arise  that  will  require  it  to  go  further  and  still  further, 
until  some  of  the  dearest  rights  of  the  people  may  be  impaired  or 
violated.  It  should  be  recollected,  that  in  the  transactions,  which 
induced  the  recommendation,  and  in  some  of  the  States,  the  adop- 
tion of  this  new  and  extra  governmental  remedy,  were  involved  the 
right  to  private  property,  the  right  of  personal  security,  and  the 
right  of  personal  liberty — the  fundamental  civil  rights  upon  which 
our  social  organization  is  founded,  The  adoption  of  that  extra 
governmental  remedy  tends  to  lead  off  from  and  supercede  the 
proper  remedies,  that  are  within  the  constitutional  power  of  the 
government,  which  are  the  passage  of  other  laws,  if  necessary,  and 
the  enforcement  of  them  for  the  protection  of  private  property  in 
its  possession  and  use,  and  the  enforcement  of  personal  security, 
and  personal  liberty,  as  those  rights  may  pertain  to  all  of  the  per- 
sons who  are  connected  with  this  struggle  between  capital  and  la- 
bor, and  when  all  parties  shall  be  made  to  understand  by  the  con- 


OUR    FEDERAL    RELATIONS.  I57 

stitutional  power  of  the  government,  exactly  what  their  rights  are, 
that  will  be  the  best  security  that  they  will  peaceably  abide  by 
them. 

If  the  government  can  not  protect  private  property  by  such  con- 
stitutional means,  then  it  is  a  sad  failure  as  it  is  now  organized,  and 
property  will  have  to  look  to  some  other  organization  of  govern- 
ment for  its  protection,  for  in  the  end,  property  always  has  and  al- 
ways will  protect  itself,  by  fair  means  if  it  can,  but  by  any  means 
if  it  must.  It  is  a  great  power,  backed  by  human  selfishness,  that 
prefers  any  government  that  can  and  will  protect  it.  But  the  State 
of  Texas,  having  given  to  railroad  companies  a  large  bonus  in 
lands  and  charters,  with  all  of  their  advantages,  including  the  right 
to  take  the  lands  of  persons  for  their  track  and  right-of-way,  upon 
making  compensation  therefor,  and  also  the  monopoly  of  exclu- 
sively using  the  roads  constructed  by  them  for  transportation  and 
travel,  with  the  right  to  charge  therefor,  has  not  the  govern- 
ment of  this  State  some  constitutional  power  to  require  the  com- 
panies to  give  a  fair  compensation  to  employees,  whose  labor  is 
necessary  to  carry  on  the  business?  The  answer  is  not  any  more 
right  than  to  force  laborers  to  work  for  what  the  State  might  stip- 
ulate as  being  fair  wages. 

Fortunately,  the  relation  between  the  State  of  Texas  and  its  rail- 
road companies,  and  the  power  of  control,  which  the  State  has 
over  them,  is  not  left  to  deductive  construction,  but  is  well  defined 
by  laws  under  which  they  are  constructed,  and  by  the  Constitution 
of  the  State,  adopted  in  1876.  In  that  instrument,  it  is  provided 
that  railroads  heretofore  constructed,  or  that  may  hereafter  be  con- 
structed, in  this  State,  are  declared  public  highways,  and  railroad 
companies  common  carriers. 

The  legislature  shall  pass  laws  to  correct  abuses,  and  prevent 
unjust  discrimination  and  extortion  in  rates  of  freight  and  passen- 
ger fares  on  the  different  railroads  in  this  State;  shall  from  time 
to  time  pass  laws  re-establishing  a  reasonable  maximum  rate  of 
charges  for  the  transportation  of  passengers  and  freight  on  said 
railroads,  and  enforce  all  such  laws  by  adequate  penalties. 

From  this  it  is  plain  that  the  power  of  regulation  by  the  State 
has  reference  to  the  accommodation  of  the  people  in  transporta- 
tion and  travel,  and  not  to  furnish  labor  to  the  employes  of  the 
company,  or  give  opportunity  for  labor  on  the  roads,  or  to  regulate 
the  wages  of  it;  and  even  its  constitutional  mode  of  regulation,  for 
the  objects  contemplated  is  limited  to  the  passing  of  laws  for  the 
regulation,  and  to  having  such  laws  enforced  by  proper  penalties, 
which  penalties  can  only  be  recovered  by  suits,  or  ])rosecutions  in 
the  courts  of  the  State,  and  from  this  it  follows  that  it  can  not  as- 
sume the  management  of  the  roads  in  this  State,  by  commission- 
ers appointed  to  prescribe  terms  of  transportation  and  fare  in  any 
case  whatsoever,  for  it  has  been   often  held,   in   our   courts,   that 


158  OUR    FEDERAL    RELATIONS. 

when  a  power  to  do  a  particular  thing,  in  a  specified  way,  has 
been  conferred  on  a  body,  and  that  body  is  expressly  required  to 
perform  it  by  its  own  action,  it  can  not  constitutionally  depute  the 
power  to  do  it  to  another  body,  created  to  act  as  a  substitute  for 
it.  This,  then,  is  the  tenure  by  which  railroad  companies  have 
and  hold  a  right  of  private  property  in  this  State,  in  all  of  the  ma- 
terials of  which  their  roads  are  constructed,  upon  the  right-of-way, 
and  their  rolling  stock,  and  the  gross  proceeds  in  money,  earned 
by  the  running  of  their  roads,  all  of  which  is  as  much  their  private 
property  as  are  the  lands,  farming  stock  and  implements,  and 
money  derived  from  the  crops  of  any  farmer  in  this  State,  and  the 
State  has  no  more  right  of  interference  in  the  adjusting  of  the 
wages  of  lab^Dr  for  railroad  companies  than  for  farmers  in  the 
State. 

Suppose,  then,  that  labor  unions  should  be  formed  to  such  an 
extent  as  to  dictate  their  own  term.s  as  to  the  price  of  wages.  They 
have  a  right  to  do  it  if  they  can,  provided  their  conduct  in  doing 
it  is  peaceful,  and  they  do  not  intimidate  others,  or  commit  vio- 
lence upon  the  persons  and  private  property,  engaged  in  carrying 
on  railroads,  or  otherwise  illegally  interfere  in  the  business  of  rail- 
road companies.  In  that  event,  should  it  happen,  it  would  simply 
result  in  co-operation  between  capital  and  labor,  with  a  division 
of  the  profits,  as  agreed  upon  by  the  parties,  just  as  a  compromise 
is  effected  between  competing  lines  of  railroads.  If  that  should 
fail  to  be  practicable,  the  State  would  have  to  modify  or  change 
the  mode  of  providing  transportation  and  travel  for  the  people. 

It  will  be  time  enough  to  consider  how  that  could  or  would  be 
done  when  necessity  for  it  arises.  In  the  natural  order  of  things, 
all  trade,  including  the  wages  of  labor,  was,  and  should  be,  gov- 
erned by  the  rule  of  demand  and  supply. 

That  rule  is  not  now  satisfactory,  and  the  cause  why  it  is  not,  as 
well  as  the  cause  why  labor  and  capital  are  now  arrayed  in  such 
hostile  antagonism,  is  readily  traceable  to  the  undue  advantages 
given  by  our  government  to  accumulated  capital  in  numerous 
ways.  It  is  hardly  probable,  or  to  be  expected,  that  our  govern- 
ment can  or  will  remove  the  causes  that  have  brought  evil  times 
upon  us  by  a  divorcement  of  government  from  all  sorts  of  favorite- 
ism,  by  an  equal  uniform  ad  valorem  tariff  on  all  imports,  and  by  a 
repeal  of  all  laws,  and  a  reversal  of  all  decisions  which  confer  un- 
necessary governmental  advantages  on  private  property  or  indi- 
viduals. 

I  fear  the  drift  of  the  money  power  is  driving  it  too  strongly  to 
an  unknown  destination  to  be  arrested  now.  Governments,  in- 
deed, rarely  go  backward  to  reform  evils,  hence  a  great  burden  of 
responsibility  is  thrown  upon  the  statesmen  of  the  day,  to  steer  the 
ship  of  state  safely  through  the  conflicting  elements  that  now  beset 
our  organized  social   existence  in  this   country.     However,  this 


OUR    FEDERAL    RELATIONS.  159 

Struggle  may  progress  in  the  future,  or  what  may  be  the  result  of 
forcing  the  State  into  action,  it  will  be  well  that  it  should  be  kept 
in  mind,  and  acted  on,  that  the  preservation  of  our  fundamental 
civil  rights  is  far  more  important  to  the  well-being  of  a  free  people 
than  cheap  goods,  cheap  freight  and  fare,  and  high  wages  for  work, 
and  anything  else  connected  with  the  private  pursuits  of  individ- 
uals that  are  subsidized  by  the  action  of  the  government. 

[Note. — Since  the  delivery  of  this  lecture,  the  Constitution  of 
Texas  has  been  amended  so  as  to  authorize  a  railroad  commis- 
sion. 


l6o  OUR    FEDERAL    RELATIONS. 


A  PUBLIC  LECTURE. 

f Delivered  in  the  University,  Dec,  1889,  by  O.  M.  Roberts,  Law  Professor.  ] 


THE    HISTORY   AND    BURDEN    OF    TAXATION. 


Taxes  are  contributions  in  money,  imposed|upon'any  individual 
for  the  support  of  government.  The  purpose  for  which  these 
exactions  are  made  depends  upon  the  nature  and  objects  for 
which  the  government  is  instituted  and  carried  on.  In  some 
countries  governments  are  organized  to  confer  special  privileges, 
advantages,  benefits  and  protection  upon  the  favored  few  by  im- 
posing burdens  upon  the  many.  The  disparity  between  the  two 
classes  may  become  so  great  that  the  only  consideration  given  by 
the  government  to  the  mass  of  individuals  for  their  contributions 
in  the  shape  of  taxes  is  the  right  to  live  and  to  work.  They  are 
protected  in  that  right  as  necessary  instruments  in  sustaining  the 
government,  so  administered  to  promote  the  prosperity,  grandeur 
and  happiness  of  its  fovorites.  The  necessary  result  of  this  is, 
when  the  population  becomes  dense  and  the  avenues  of  employ- 
ment are  all  crowded,  that  the  rich  become  richer  and  the  poor 
become  poorer,  until  the  very  poor  must^run  the  gauntlet  through 
life  between  the  poorhouse  and  the  prison. That  condition  of  things, 
approximately  or  in  full  maturity,  is  the  criterion  by  which  such  a 
government  may  be  known,  whatever  may  be  its  form,  so  called, 
as  surely  as  the  tree  is  judged  by  its  fruit.  This  state  of  things, 
existing  in  a  greater  or  less  degree  in  the  different  countries  of 
Europe,  has  been  for  years  past  driving  hundreds  of  thousands  of 
their  people  to  the  United  States  and  to  other  parts  of  the  world. 
May  not  the  vast  accumulations  of  wealth  here  recently  acquired 
in  the  hands  of  the  few,  and  the  widespread  murmurings  and 
discontent  of  the  many,  give  warning  to  us  that  even  in  this  free 
country  there  may  be  malign  influences  at  work  strongly  tending  to 
produce  the  same  result  ?  It  has  been  estimated  that  there  have 
been  over  twenty  thousand  strikes  during  the  ten  years  last  past, 
and  during  that  time  the  protection  of  nearly  every  material  in- 
terest has  been  sought  by  a  separate  combination  of  those 
persoAs  who  are  engaged  in  it,  thereby  exhibiting  society,  in 
regard  to  its  pecuniary    condition,    as    divided    into    almost    in- 


OUR    FEDERAL    RELATIONS.  l6l 

numerable  contending  antagonisms.  This  phase  of  society  is 
new  in  this  country,  and  its  origin  and  existence  must  be  traced 
to  the  management  of  public  affairs  on  the  subject  of  taxation 
by  our  governments,  so  long  continued  as  to  inaugurate  the 
process  of  making  the  rich  richer  and  the  poor  poorer.  The 
American  doctrine  originally  was  the  very  reverse  of  this,  it 
being  that  the  government  was  instituted  and  existed  for  the 
people,  and  not  the  people  for  the  government.  This  doctrine 
was  established  when  the  States  dissolved  their  connection  with 
England  and  founded  their  governments  upon  the  sovereignty  of 
the  people  in  each  State.  The  expressions  used  in  their  consti- 
tutions, defining  the  relation  between  the  government  and  the 
people  were  different  in  different  States,  though  intended  to 
anounce  the  same  principle  in  effect.  They  were  such  as  follows: 
".\11  power  is  inherent  in  the  people;  all  free  governments  are 
founded  on  their  authority  and  instituted  for  their  benefit."  All 
men  are  born  equally  free  and  independent,  and  have  certain 
natural,  inherent,  and  inalienable  rights,  among  which  are  those 
of  enjoying  and  defending  life  and  liberty;  acquiring,  possessing, 
and  protecting  property,  and  ot  pursuing  and  obtaining  safety 
and  happiness."  AH  power  residing  originally  in  the  people, 
and  being  derived  from  them,  the  several  officers  of  government 
vested  with  authority,  whether  legislative,  executive,  or  judical, 
are  their  substitutes  and  agents,  and  are  at  all  times  account- 
able  to  them."  "No  man  or  corporation,  or  association  of  men 
have  any  other  title  to  obtain  advantages  or  peculiar  or  exclu- 
sive privileges  distinct  from  those  of  the  community  than  what 
arises  from  the  consideration  of  services  rendered  to  the  public." 
"Government  is  instituted  for  the  common  good;  for  the  protec- 
ton,  safety,  prosperity,  and  happiness  of  the  people;  and  not 
for  the  profit,  honor,  or  private  interest  of  any  one  man,  family  or 
any  class  of  men.  Each  individual  of  the  society  has  a  right  to 
be  protected  by  it  in  the  enjoyment  of  hisjlife, liberty,  and  property 
according  to  the  standing  law.  He  is  obliged  consequently  to  con- 
tribiute  his  share  to  the  expenses  of  this  protection,  to  give  his 
personal  service  or  an  equivalent  when  necessary.  But  no  part  of 
the  property  of  an  individual  can  with  justice  be  taken  from  him 
or  applied  to  the  public  use  without  his  own  consent  or  that  of  the 
representative  body  of  the  people." 

Their  constitutions  did  not  confer  upon  their  legislatures  any 
power  to  levy  taxes,  except  that  which  was  implied  from  the  grant 
of  the  power  of  legislation;  nor,  except  in  Maryland,  did  they  con- 
tain any  express  direction  as  to  the  mode  of  levying  taxes,  or  as  to 
the  kind  of  taxes  to  be  levied.  Doubtless  reliance  was  i)laced  upon 
the  announcement  of  the  general  principles  in  their  bill  of  rights 
as  guides  to  their  legislatures  in  justly  imposing  taxes  upon  the 
people;  as  then  representation  and  taxation  would  go  hand  in  hand 


l62  OUR   FEDERAL    RELATIONS. 

and  measures  would  be  carried  by  majorites  of  themselves;  and 
those  who  should  be  selected  to  make  and  execute  their  laws  were 
their  agents;  and  the  equality  of  all  men  and  the  equal  protection 
of  their  rights  of  person  and  property  were  secured;  and  as  govern- 
ment could  only  demand  from  the  individual  an  adequate  com- 
pensation for  such  protection,  and  could  not  impose  burdens  upon 
one  man  or  class  of  men  for  the  private  advantage  or  profit  of 
another  man  or  class  of  men,  the  people  of  the  several  States  had 
a  right  to  expect  that  the  burden  of  taxation  upon  each  person 
would  be  made  to  correspond  with  the  rights  of  person  and  property 
protected  for  him  by  the  government.  In  that  event  a  poll  tax 
should  be  imposed  upon  every  one  and  a  tax  upon  his  property  in 
proportion  to  its  value,  and  an  equitable  occupation  tax  upon 
persons  in  trade  who  might  handle  transient  property  that  could 
not  be  reached  by  an  annual  ad  valorem  tax.  Such  a  system  of 
taxation  would  have  been  recognized  as  just  by  the  great  mass  of 
fair-minded  men.  Rulers  of  men  of  all  kinds  and  everywhere, 
whose  rule  is  impartially  just,  will  meet  with  a  cordial  acquiescense 
and  approbation  from  those  whom  they  govern;  whereas  partiality, 
favoritism,  shown  directly  or  indirectly  to  one  class  of  men,  and 
prejudice  and  disfavor  shown  to  another  class,  will  inevitably, 
sooner  or  later,  engender  antipathies,  disgust,  jealousies,  discontent, 
strife  and  injustice. 

The  people  of  those  States  in  founding  their  government  upon 
the  rule  of  even-handed  justice  as  between  man  and  man,  controll- 
ed by  a  majority  ofthemselves,  could  hardly  then  anticipate  that 
the  democratic  majority  could  be  manipulated  so  as  to  exer- 
cise the  most  irresponsible  and  flagrant  injustice  over  minorities, 
and  sometimes  even  over  the  great  mass  of  the  people,  for  the 
special  benefit  of  favorite  classes  of  persons.  They  cou\d  then 
hardly  anticipate  that  the  agents  whom  they  would  put  in  power 
to  fill  the  offices,  legislative,  executive,  and  judical,  might  by  their 
combined  co-operation  construe  their  powers  so  as  to  pile  prece- 
dent on  precedent  in  the  assumption  of  powers  not  intended  to  be 
granted  to  them,  and  to  impose  burdens  upon  the  people  by  way 
of  taxes  so  imposed  as  to  directly  or  indirectly  accomplish  objects 
not  empbraced  in  their  constitutions.  They  may  well  be  excused 
for  not  having  understood  then  what  one  hundred  years  of  experi- 
ence 3in  free  democratic  government  might  have  taught  them,  and 
enabled  them  to  have  guarded  their  interests  by  specific  directions, 
restrictions,  and  limitations  upon  the  power  of  taxation  granted  to 
their  governments.  Texas  has  in  the  main  carried  out  the  just 
principle  by  making  the  burdens  of  taxation  upon  the  people  cor- 
respond with  the  protection  of  their  rights  of  person  and  of  prop- 
erty. 

Having  established  a  democratic  representative  republic  in  1836^ 
the  first  direct  tax  imposed  by  its  Congress  was  an  ad  valorem  tax 


OUR    FEDERAL    RELATIONS.  163 

of  one-half  of  one  per  cent,  on  all  real,  personal,  or  mixed  proper- 
ty, a  poll  tax  of  one  dollar,  and  tax  on  occupations  proportioned 
generally  to  the  amount  and  character  of  their  business;  and  in 
levying  duties  upon  imports  the  same  rule  was  generally  followed. 
The  law  having  been  changed  in  1840  by  imposing  specific  taxes 
on  articles  of  personal  property,  it  was  determined  by  the  conven- 
tion of  1845  to  establish  permanently  the  mode  of  imposing  taxes 
by  a  provision  in  the  Constitution  of  the  State  requiring  all  prop- 
erty to  be  taxed  according  to  its  value,  and  authorizing  the  legis- 
lature to  lay  an  income  tax,  and  to  tax  all  persons  pursuing  any 
occupation,  trade,  or  profession,  except  that  those  following  agri- 
cultural and  mechanical  pursuits  should  not  pay  an  occupation 
tax.  So  thoroughly  and  universally  has  this  ad  valorem  tax  on 
property  been  approved  that  it  has  furnished  the  principal  means 
to  support  the  government  of  Texas  for  more  than  fifty  years. 
Having  been  adopted  in  the  Constitution  of  1845  it  was  continued 
in  those  of  1861,  1866,  1869,  and  1876,  and  if  it  had  not  met  fully 
the  sense  of  justice  of  the  people  it  would  not  have  been  continued 
so  long  when  there  were  so  many  opportunities  for  changing  it. 

This,  then,  is  the  verdict  of  the  people  of  Texas,  that  as  the  ob- 
ject of  government  is  the  protection  of  persons  and  property,  a  tax 
upon  persons  and  their  property  should  be  levied  and  collected 
to  support  it.  In  our  present  State  Constitution  are  found  direc- 
tions, restrictions,  and  limitations  upon  the  power  of  taxation  that 
confine  it  strictly  to  taxes  levied  for  the  accomplishment  of  such 
objects  as  are  recognized  by  the  Constitution  as  parts  of  the  gov- 
ernment of  the  State,  and  of  no  others.  The  only  means  left  of 
accomplishing  objects  indirectly  is  in  the  levying  of  such  occupa- 
tion taxes  as  either  favor  or  discourage  some  particular  pursuit, 
which  has  seldom  ever  yet  been  practiced  in  this  State  to  such  an 
extent  as  to  have  aroused  disaffected  combinations  to  evade  or  vi- 
olently oppose  the  law.  Such  indireclions  in  using  the  power  of 
taxation  to  the  injury  of  one  class  of  pursuits  or  to  the  gratuitous 
advantage  of  others  are  generally  odious,  and  are  fraught  with  evil 
consequences  to  any  government  that  persists  in  such  a  course  of 
action.  The  effort  to  produce  moral  results  or  material  benefits  to 
the  community  indirectly  by  imposing  high  taxes  upon  particular 
pursuits  is  seldom  effective  and  is  wrong  in  principle.  Fortunate- 
ly civilized  society  has  other  agencies  to  correct  attendant  evils 
better  than  by  placing  the  government  in  the  position  of  being 
an  enemy  to  any  one  honestly  pursuing  an  avocation  permitted  by 
law. 

The  legislature  is  ])rohibited  from  directly  or  indirectly  confer- 
ring benefits  upon  particular  pursuits  or  persons  under  the  power 
of  taxation,  because  the  C<mstituiion  provides  that  "taxation  shall 
be  equal  and  uniform,"  that  "occupation  taxes  shall  be  e(|ual  and 
jniform  upon  the  same  class  of  subjects,"  and  that  "taxes  shall  be 


164  OUR   FEDERAL   RELATIONS. 

levied  and  collected  by  general  laws  and  for  public  purposes 
only."  Exemptions  from  taxation  may  be  made  on  property  de- 
voted to  religious  or  educational  purposes,  and  upon  particular 
persons  only  in  cases  of  great  public  calamity  by  a  vote  of  two- 
thirds  of  both  houses  of  the  legislature. 

Notwithstanding  the  equity  and  justice  of  this  system  of  ad  va- 
lorem taxation  upon  property  in  principle,  there  may  be  a  difficul- 
ty in  securing  equality  in  its  burdens  upon  different  persons  pro- 
portionally by  the  mode  provided  for  the  assessment  of  taxes, 
which  should  demand  the  utmost  care  and  wisdom  of  the  legisla- 
ture to  secure  its  perpetuation  as  a  system  of  taxation  in  the  State. 

Indeed  it  would  be  more  correct  in  principle  for  the  State  to 
rely  more  than  it  does  upon  an  ad  valorem  tax  upon  property  in 
collecting  its  revenues.  For  an  occupation  tax  can  be  justified 
only  upon  the  ground  of  reaching  transient  property  that  cannot 
be  reached  with  facility  by  the  mode  of  assessing  permanent  prop- 
erty that  is  in  the  possession  of  its  owner  on  the  first  of  January 
each  year.  The  force  of  that  ground  is  much  weakened  when  it 
is  considered  that  in  most  occupation  taxes  their  payment  is  made 
in  the  first  instance  by  those  persons  who  are  taxed,  but  is  eventu- 
ally paid  by  those  persons  who  deal  with  them,  and  is  therefore 
often  a  tax  upon  the  labor  and  industry  of  the  persons  who  deal 
with  them.  This  is  obvious  in  the  case  of  an  occupation  tax  im- 
posed on  merchants. 

Permanent  property  is  human  labor,  materialized  into  shape, 
producing  values  in  the  way  of  profits.  A  very  small  portion  of 
those  profits,  taken  as  taxes,  will  support  the  government  without 
taxing  the  labor  of  those  who  are  in  the  struggle  to  acquire  it.  In 
a  republic,  it  surely  is  the  interest  of  the  political  organization  to 
facilitate  the  acquisition  of  property  by  the  greatest  number  prac- 
ticable in  the  association  by  honest  labor,  without  placing  any 
drawback  upon  their  laudable  efforts.  That  can  only  be  done  by 
making  the  property  already  acquired  bear  mainly  the  burden  of 
supporting  the  government.  Certainly  the  greater  the  number  of 
permanent  property  holders  in  a  State,  the  greater  will  be  the 
means  of  progress  in  civilization.  The  object  of  good  government 
should  be  to  shape  its  taxes  so  as  to  promote  that  result.  The 
State  has  an  inducement  to  rely  mainly  on  taxation  on  property, 
in  view  of  the  fact  that  the  government  of  the  United  States  levies 
and  collects  its  revenues,  directly  and  indirectly,  upon  the  labor 
and  industry  of  the  people  to  a  degree  that  excludes  the  State  from 
resorting  to  that  source  for  the  support  of  its  government. 

In  order  to  exhibit  plainly  the  fact  that  the  government  of  the 
United  States  has  collected  its  revenue  from  the  labor  and  indus- 
try of  the  people,  and  the  reason  of  it,  it  is  necessary  to  refer  to 
the  provisions  in  the  Constitution  relating  to  taxation,  and  the 
construction  of  them,  which  has  gradually  led  to  an  excessive  in- 


OUR    FEDERAL    RELATIONS.  165 

crease  of  revenue  beyond  the  necessary  support  of  the  govern- 
ment. 

The  government,  under  the  Articles  of  Confederation,  was  sup- 
ported by  contributions  from  the  States  in  proportion  to  the  value 
of  the  lands,  and  improvements  thereon  in  each  State.  This  show- 
ed that  its  framers  thought  that  the  substantial  property  of  the 
country,  which  then  consisted  mainly  in  its  real  estate,  was  the 
proper  subject  of  taxation  for  the  support  of  the  government.  It 
might  reasonably  have  been  expected  that  the  same  principle 
would  have  been  adopted  for  the  succeeding  government,  so  soon 
afterwards  instituted  by  the  adoption  of  the  present  Constitution 
of  the  United  States.  That  expectation,  if  entertained,  has  failed 
of  realization,  by  a  provision  being  inserted  in  the  Constitution 
that  "no  capitation  or  other  direct  tax  shall  be  laid  unless  in  pro- 
portion to  the  census."  This  has  been  held  by  the  Supreme 
Court  to  apply  only  to  a  poll  tax  and  a  tax  on  lands.  And  a  fur- 
ther provision  was  inserted  that  "representatives  and  direct  taxes 
shull  be  apportioned  among  the  several  States,  which  may  be  in- 
cluded in  this  Union,  accordiug  to  their  respective  numbers,''  etc. 

In  addition  to  the  difficulty  of  fairly  adjusting  such  a  tax  on 
land,  the  want  of  correspondence  between  the  number  of  people 
and  the  value  and  amount  of  land  in  each  State,  such  a  tax  would 
be  so  unequal  upon  the  citizens  of  different  States,  and  consequent- 
ly so  unjust,  that  it  has  seldom  been  adopted  as  a  means  of  sup- 
porting the  government,  and  has  been  abandoned  when  the  emer- 
gency no  longer  existed  which  caused  its  adoption.  Congress,  as 
a  permanent  policy  in  raising  revenues,  has  acted  upon  another 
provision  which  declares  that  "the  Congress  shall  have  the  power 
to  lay  and  collect  taxes,  duties,  imposts,  and  excises  to  pay  the 
debts  and  provide  for  the  common  defense  and  general  welfare  of 
the  United  States;  but  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States." 

Thus,  as  it  was  designed  that  the  federal  government  should 
exercise  only  such  powers  as  were  delegated  to  it,  it  became 
necessary  to  specify  the  power  to  lay  and  collect  the  different  kind 
of  taxes,  and  to  express  the  purposes  for  which  that  power  was 
granted.  If  by  this  clause  it  had  been  universally  understood  that 
the  general  welfare  of  the  United  States  (meaning  the  welfare  of  the 
government  of  the  United  States)  should  be  accomplished  only 
by  the  exercise  of  the  powers  delegated  to  it  in  such  manner  as  to 
effect  only  the  objects  specified  in  the  powers  delegated,  and  not 
incidentally,  other  objects  which  were  not  specified,  the  taxation 
under  this  provision  would  have  been  laid  and  collected  with 
direct  reference  only  to  what  was  necessary  to  support  the  govern- 
ment. A  construction  in  direct  o^jposition  to  this  has  caused  a 
continual  contention  and  political  strife,  and  has  led  to  all  of  the 
extravagant  expenditures  from  the  meeting  of  the  first  Congress  to 


1 66  OUR    FEDERAL    RELATIONS, 

the  present  time.  That  construction  is  that  the  words  "general 
welfare  of  the  United  States"  mean  the  general  welfare  of  the  people 
of  the  United  States  in  their  material  and  pecuniary  interests,  and 
in  whatever  else  would  contribute  to  the  common  good  of  the 
country  and  the  power  of  the  gouernment,  and  that  Congress  could 
rightfully  exercise  the  powers  delegated  to  it  in  such  a  manner  as 
would  effect  such  objects  indirectly  as  well  as  directly,  in  accord- 
ance with  its  own  judgment  and  discretion. 

Similar  in  effect  was  the  construction  of  this  clause  by  Pres- 
ident Monroe  in  his  special  veto  message  of  May  4,  1822 — 
thirty-three  years  after  the  organizaton  of  the  government  under 
the  Constitution, — in  which  he  says  that  he  has  changed  the  view 
which  he  was  inclined  to  take  of  this  clause  in  the  more  early 
stage  of  the  government.  He  proceeds  to  expound  the  construction 
of  it  by  dividing  the  clause  into  two  parts,  asserting  that  the  first, 
"to  lay  and  collect  taxes,  duties,  imposts  and  excises,"  conferred 
the  power  of  taxation  without  any  limit;  and  the  second,  "to  pay 
the  debts  and  provide  for  the  common  defense  and  general  welfare 
of  the  United  States,"  conferred  the  power  to  appropriate  the 
money  collected,  not  limited  to  the  objects  expressed  in  the  other 
powers  granted  to  the  government,  and  limited  only  by  a  sense  of 
duty  on  the  part  of  the  members  of  Congress  ;  and  concluded  by 
saying  :  "My  idea  is  that  Congress  have  an  unlimited  power  to 
raise  money,  and  that  in  its  appropriation  they  have  a  discre- 
tionary power  restricted  only  by  the  duty  to  appropriate  it  to 
purposes  of  common  defense,  and  of  general,  not  local,  National 
not  State  benefit."  Of  course  every  one  will  understand  that  the 
discretion  of  Congress  practically  determines  its  duty. 

Reference  is  here  made  to  this  construction  of  the  power  of 
taxation  and  appropriation,  because  it  is  an  epoch  in  the  political 
history  of  this  country.  It  was  an  abandoment  of  the  principles 
of  the  Virginia  resolutions  of  1798  and  1799,  under  which  he  and 
his  two  predecessors  had  been  elected,  by  what  was  then  called 
the  Republican  party,  in  opposition  to  the  federal  party.  After 
referring  to  the  action  of  the  government  in  appropriating  money 
to  build  numerous  roads  by  consent  of  the  States  through  which 
they  passed,  to  facilitate  travel  through  the  country,  and  appro- 
priating money  for  pensions,  and  for  the  relief  of  certain  sufferers, 
he  explains  the  reason  of  his  change  of  opinion  about  the  power 
under  this  clause  by  saying  that  it  is  "better  to  admit  that  the 
construction  given  by  these  examples  has  been  just  and  proper 
than  to  deny  that  construction,  and  still  practice-on  it — to  say  one 
thing  and  do  another,"  He  maintained  that  Congress  had  the 
power  to  appropriate  money  for  the  construction  of  roads  and 
canals  that  would  facilitate  the  operations  of  war  and  mail  service, 
and  thereby  promote  the  purposes  of  commerce  and  political  in- 
telligence, and  bring  into  market  the  public  lands,  but  denied  that 


OUR  FEDERAL  RELATIONS.  167 

any  such  control  could  be  exercised  over  them  by  the  federal 
government  as  would  interfere  with  the  rights  of  the  States.  As  he 
regarded  the  bill  objectionable  on  that  ground  he  vetoed  it.  He 
then  took  a  broad  view  of  the  great  advantages  to  the  Union  by  a 
general  system  of  internal  improvements  by  the  general  govern- 
ment, which  had  become  the  more  necessary  by  the  acqusition  of 
Louisiana  and  Florida,  and  recommended  an  amendment  of  the 
Constitution  giving  it  the  necessary  power.  At  the  next  session 
of  Congress  President  Monroe  approved  an  appropriation  for  a 
general  system  of  internal  improvements,  embracing  surveys  of 
numerous  routes  for  roads  and  canals,  rivers  and  harbors.  At  the 
same  session  he  approved  a  law  of  Congress  increasing  the  duties 
on  imports  in  a  manner  purposely  to  afford  additional  protection 
to  American  manufactures. 

The  majorities  in  favor  of  the  law  were,  in  the  Senate  four,  and 
in  the  House  five.  In  the  vote  on  this  bill  there  was  a  division 
between  the  members  of  the  North  in  favor  of  it,  and  of  the  South 
against  it,  which  has  continued  generally  to  exist  up  to  the  present 
time. 

The  history  of  this  period  is  important  for  two  connected  objects, 
showing  that  duties  were  levied  for  protection  with  revenue  as  an 
incident,  and  not  as  it  was  previously  done  from  the  time  of  the 
first  Congress,  for  revenue  with  protection  as  an  incident;  and  as 
showing  that  appropriations  were  made  for  a  general  system  of 
internal  improvements,  which  opened  the  way  for  appropriations 
for  any  and  every  other  object  that  Congress  might 
deem  to  be  for  the  general  welfare,  under  the  most  liberal  con- 
struction of  those  terms,  not  confined  to  the  objects  embraced  in 
the  express  and  implied  powers  of  Congress.  These  measures 
were  approved  and  enlarged  by  the  succeding  administration  of 
President  John  Quincy  Adams,  which  encouraged  the  manufactur- 
ers of  the  Northern  States  to  combine  their  efforts  to  increase 
their  protection  by  an  increase  of  duties  upon  foreign 
goods  similar  to  those  manufactured  by  them.  For  that 
purpose  they  held  a  convention  at  Harrisburg,  Pennsylvania,  in 
1827,  and  pased  and  sent  a  memorial  to  Congress  urging  an  increase 
of  protection,  which  was  complied  with  at  the  next  session  by 
enacting  the  tariff  of  1828 — a  tariff  which  was  afterward  the  subject 
of  a  bitter  controversy,  and  was  styled  in  the  South  the  tariff  of 
abominations.  Before  that  time  large  amounts  of  taxes  had  been 
collected  by  direct  taxes  on  lands,  and  excises  on  the  distillation 
of  liquors,  on  licenses,  and  stamps.  These,  however,  were  aban- 
doned as  soon  as  practicable  as  temporary  expedients.  And  now, 
after  the  adoption  of  the  tariff  of  1828,  the  manufacturers,  constitut- 
ing a  powerful  influence  in  the  Northern  States,  were  interested  to 
prevent  any  other  mode  of  taxation  for  the  support  of  the  govern- 
ment than  by  a  tariff  which  would  continue  or  increase  their  pro- 


l68  OUR    FEDERAL   RELATIONS. 

tection.  For  the  same  purpose  also  they  were  interested  to  favor 
the  appropriation  of  money  for  a  general  system  of  internal  im- 
provements, and  for  all  other  objects  that  the  government  could 
be  induced  to  foster.  This  influence  has  greatly  aided  in  shaping 
taxation  by  the  government  from  that  time  to  the  present.  Previous 
events  had  tended  to  prepare  the  public  mind  for  this  liberal 
construction  of  the  powers  of  government  by  which  these  measures 
were  adopted.  They  were  the  assumption  of  the  revolationary 
debts  of  the  States;  the  charter  of  a  national  bank,  and  its  recharter 
in  1816,  approved  by  President  Madison  by  a  change  of  his  opinion 
in  favor  of  it;  the  action  of  President  Jefferson  approving  the 
establishment  of  the  Military  Academy;  his  sending  Lewis  and 
Clark  to  discover  and  claim  Oregon  on  the  Pacific  Ocean;  the 
purchase  by  him  of  Louisiana  for  fifteen  millions  of  dollars  without 
constitutional  authority,  for  which  act  he  sought  a  confirmation  by 
an  amendment  of  the  Constitution,  which,  however,  was  never 
made;  the  recommendation  by  President  Jefferson  of  an  amend- 
ment of  the  Constitution  to  establish  roads,  canals,  and  other 
internal  improvements;  the  war  of  1812  with  Great  Britain,  which 
cost  the  United  States  one  hundred  millions  of  dollars;  the  pur- 
chase of  Florida  for  three  millions  of  dollars;  the  assertion  of 
what  was  called  the  Monroe  doctrine,  which  was  a  claim  of  right 
on  the  part  of  the  United  States  to  interfere  to  prevent  any  further 
occupation  of  American  territory  by  the  monarchial  powers  of 
Europe;  the  Panama  Mission;  and  the  great  increase  of  diplomatic 
agents  and  officers  of  government. 

These  events,  with  a  successful  administration  of  the  government 
up  to  that  time,  inspired  the  minds  of  a  large  class  of  statesmen 
with  enlarged  ideas  of  an  imperial  dominion  over  North  America, 
and  a  sort  of  fraternal  protectorate  over  the  whole  continent  of 
America,  which  resulted  in  the  remodeling  of  parties,  and  the 
formation  of  a  party  in  support  of  what  was  called  "the  American 
System,"  which  reached  its  successful  recognition  in  the  country 
by  the  large  appropriations  for  internal  improvements  of  roads, 
canals,  rivers,  and  harbors,  and  the  tariff  of  1828  for  the  protection 
of  American  manufacturers.  Thus  the  policy  fastened  on  the 
country  to  permanently  rely  mainly  on  a  tariff  to  supply  the  means 
for  the  expenditures  of  the  government,  and  the  policy  of  making 
large  expenditures  for  internal  improvements,  bounties  to  ship 
lines,  the  purchase  of  additional  territory,  the  expenses  of  wars, 
and  numerous  other  objects  have  resulted  in  the  necessary  conse- 
quence that  such  a  tariff  would  have  to  be  levied  as  would  afford 
protection  to  manufacturers;  especially,  when  levied,  as  it  has 
uniformly  been  done,  with  specific  reference  to  the  protection  of 
such  goods  as  were  manufactured  in  the  United  States. 

It  is  true  that  a  few  years  afterwards,  in  1S32,  by  the    protest   of 
South  Carolina  and  Georgia  against   the   tariff  of   1828,    and    the 


OUR    FEDERAL   RELATIONS.  169 

threat  and  preparation  of  South  Carolina  to  secede  from  the  Union, 
the  Congress  passed  a  compromise  law,  by  which  duties  were  to 
be  gradualy  reduced  until  at  the  end  often  years  they  would  be 
fixed  at  twenty  per  cent.  The  compromise  was  made  under  the 
announcement  by  the  President  that  the  power  of  the  federal 
government  would  be  used  to  prevent  secession  by  a  State,  which 
from  its  general  approval  at  the  time  put  an  end,  perhaps  forever, 
to  the  interference  of  the  action  of  a  State  in  influencing  the  action 
of  Congress  and  the  government,  as  it  then  did  and  had  previous- 
ly often  done.  This  reduction  soon  disappeared  by  the  continu- 
ation of  the  policy  thathad  been  inaugurated  of  making  large  appro- 
priations for  the  grand  objects  that  had  been  undertaken  by  the 
government.  It  is  but  just  to  admit  that  the  administrations  whose 
acts  mainly  contributed  to  establish  these  new  powers  in  the 
government  were  professedly  controlled  by  the  principles  of  the 
Virginia  Resolutions  of  1798  and  1799,  which  repudiated  federalism 
and  supplanted  it  with  Jeffersonian  republicanism.  And  this  is  a 
most  notable  illustration  of  how  men's  minds  and  actions  will  be 
changed  when  they  are  put  in  power  and  required  to  act  in  emer- 
gencies. 

Having  shown  how  a  protective  tariff  was  permanently  fastened 
upon  the  country,  and  the  influences  tending  to  perpetuate  it,  it  is 
unnecessary  to  trace  the  legislation  of  Congress  by  which  it  has  at 
one  time  been  reduced  and  at  another  time  raised  again,  which 
has  repeatedly  occurred.  Its  continued  existence  is  amply  evidenc- 
ed by  a  constantly  increasing  investment  of  capital  in  manufactures 
from  the  time  the  policy  was  inaugurated  to  the  present  time,  and 
by  the  great  fortunes  acquired  by  those  engaged  in  them. 

It  is  the  policy  of  the  government  to-day,  and  there  is  no  organiz- 
ed body  of  statesmen  that  proposes  to  abandon  it  now  or  in  the 
near  future.  Both  of  the  two  great  parties  in  the  country  are  in 
favor  of  so  arranging  the  tariff  as  not  to  materially  affect  pre- 
judicially the  interests  of  capital  and  labor  engaged  in  manu- 
factories. That  is  an  avowal  of  favor  of  protection  as  plainly  as 
though  it  were  expressed.  Both  parties  are  in  favor  of  modifying 
the  tariff  so  as  to  avoid  the  axcessive  collection  annually  of  over 
fifty  millions  of  dollars  which  is  not  needed  to  meet  the  annual 
expenditures  of  the  government.  They  differ  simply  about  the 
manner  of  doing  it,  and  the  plan  proposed  by  either  party  sustains 
the  policy  of  protection.  If  protection  is  a  positive  good  for  the 
wholy  country  there  would  seem  to  be  no  difficulty  in  getting  rid 
of  this  excess  of  fifty  millions  of  revenue  by  increasing  the  duties 
sufficiently  to  exclude  the  foreign  importations  that  produce  that 
amount  of  revenue.  But  the  fact  that  this  surplus  has  been  in- 
creasing for  several  years  past  without  that  easy  plan  for  getting 
rid  of  it  having  been  adopted  might  raise  a  doubt  about  the 
principle  of  the  more  protection  the  more  good  to  the  country. 


lyo  OUR    FEDERAL    RELATIONS. 

One  party  seeks  to  accomplish  that  object  by  reducing  the  duties 
on  some  articles  of  commerce  and  admitting  other  articles  free  of 
duty.  The  other  party,  not  agreeing  to  that,  seeks  to  make  a  re- 
duction upon  the  internal  revenue  and  some  other  subjects.  The 
agonizing  struggle  by  Congress  over  this  unfortunate  excess  of  the 
revenue  reminds  one  of  the  perplexing  dilemma  of  the  man  who 
had  a  ferocious  animal  by  the  ears  and  could  neither  hold  on  nor 
let  loose  the  angry  beast  without  danger  to  himself.  To  show  that 
there  has  been  a  gradual  increase  in  the  tariff  and  of  the  appropri- 
ations that  made  it  necessary,  reference  may  be  made  to  statements 
made  in  debates  in  Congress  by  distinguished  statesmen. 

The  average  annual  receipts  of  the  government  for  the  decade 
ending  iSoo  was  $5,000,000;  of  that  ending  1830,  $19,000,000;  of 
that  ending  i860,  $53,000,000;  and  of  the  eight  years  ending  1888, 
estimated  $365,000,000.  It  is  stated  that  the  foreign  articles  im- 
ported amount  to  $723,000,000.  A  duty  averaging  47  per  cent,  is 
laid  upon  $479,000,000  worth  of  those  articles,  and  $244,000,000 
worth  of  them  are  admitted  free.  The  tariff  so  laid  is  said  to  pro- 
duce $225,900,000  of  revenue,  which  added  to  the  internal  revenue 
from  whisky,  tobacco,  etc.,  amounts  to  over  $50,000,000  more  than 
is  necessary  to  pay  the  annual  expenses  of  the  government. 

It  is  estimated  that  for  every  dollar  of  the  whole  of  this  revenue 
that  is  received  by  the  government  there  are  five  dollars  paid  for 
similar  goods  to  American  manufacturers  as  a  bounty  for  manufac- 
turing similar  goods  in  the  United  States.  This  is  upon  the  sup- 
position that  the  American  manufacturer  will  sell  his  goods  at  the 
same  price  that  similar  foreign  goods  can  be  sold  for  after  the 
average  47  per  cent,  duty  has  been  added  on  them  upon  passing 
through  the  custom  house  of  the  United  States,  and  that  he  sells 
five  times  as  many  as  are  imported.  The  effect  of  this,  if  this  esti- 
mate is  correct,  is  to  give  a  protection  bounty  to  American  manu- 
facturers of  over  one  billion  of  dollars  by  the  tariff.  Now  suppose 
this  estimate  of  the  protection  bounty  to  the  manufacturers  to  be 
approximately  correct,  or  even  two  or  three  times  greater  than  a 
correct  estimate,  it  exhibits  a  most  extraordinary  state  of  things  in 
a  country  which  boasts  of  being  "the  land  of  the  free  and  the  home 
of  the  brave,"  in  which  there  are  over  fifty  millions  of  persons  who 
are  consumers  of  manufactured  goods  who  suffer  themselves  to  be 
taxed  to  furnish  such  a  bounty  to  American  manufacturers  who  by 
the  last  census  numbered  only  something  over  fourteen  thousand 
and  now  probably  a  thousand  more.  Had  the  three  millions  of 
people  in  the  American  colonies  in  1776  tamely  submitted  to  be 
taxed  for  general  revenue  by  the  British  parliament  it  is  not  doing 
that  government  justice  to  suppose  that  such  a  burden  as  this 
would  have  been  imposed  by  it  upon  the  American  people.  There 
is  nothing  in  the  history  of  that  period  to  justify  such  a  supposi- 
tion.    The  expense  of  the  civil  war  made  it  necessary  to  lay  a  tax 


OUR    FEDERAL    RELATIONS.  17I 

upon  property  within  the  States,  the  manufacturers  having  lost 
their  customers  in  the  South.  They  being  restored  to  them  after 
the  war,  a  return  was  made  to  the  protective  tariff  and  to  internal 
tax  on  whisky,  tobacco,  etc.,  which  is  itself  a  tax  on  labor  and  in- 
dustry as  well  as  the  tariff  is. 

What  is  tfie  significance  of  protection  as  a  permanent  policy  of 
the  goyernment?  It  is,  first,  to  furnish  a  home  market  for  all  goods 
manufactured  in  the  United  States;  and,  second,  to  continue  it 
until  the  increase  of  manufacturers  and  their  employes  consume 
all  of  the  surplus  products  and  raw  materials  of  this  country,  in- 
cluding that  which  is  now  exported  to  foreign  markets.  How  long 
will  that  take,  when  it  is  considered  that  there  is  about  four  times 
as  much  capital  invested  and  six  times  as  many  persons  employed 
in  agricultural  pursuits  as  there  are  in  manufactures,  the  agricul- 
tural exports  now  being  over  $500,000,000?  If  that  result  could 
be  attained  in  fifty  years,  with  its  enormous  burden  upon  the  labor 
and  industry  of  the  people,  during  that  time  it  would  still  require 
a  protective  tariff  to  be  maintained  to  enable  the  surplus  manufac- 
tured goods  to  be  sold  in  foreign  markets,  if  it  be  true  that  they 
can  not  now  and  could  not  then  be  manufactured  as  cheaply  here 
as  in  Europe.  For  the  United  States  must  always  export  Ameri- 
can production  of  some  sort  in  return  for  such  imports  as  can  not 
be  or  are  not  produced  in  this  country.  The  only  things  that 
could  then  reduce  the  tariff  to  the  revenue  standard  would  be  pau- 
per labor,  as  it  is  called,  and  an  accumulation  of  capital  in  manu- 
factures equal  to  or  sufficient  to  cope  with  that  possessed  in  Europe. 
Should  the  day  ever  come  that  this  country  shall  co^e  to  be  class- 
ed as  a  manufacturing  country,  as  England  is  to-day,  and  the  inde- 
pendent agriculturist  no  longer  holds  the  balance  of  power  in  the 
government,  it  will  be  a  day  of  mourning  for  the  lost  freedom  and 
equality  of  the  people.  Republicanism  will  be  dead,  for  depen- 
dent operatives,  and  larra  renters,  and  trades  people  can  not  main- 
tain it.  It  is  useless  to  speculate  upon  such  a  contingency  now 
when  the  agricultural  resources  of  this  country  are  not  half  devel- 
oped and  will  not  be  for  many  years  in  the  future. 

There  are  many  subjects  of  interest  connected  with  this  policy 
of  protection,  the  discussion  of  which  would  occupy  too  much 
space  for  a  single  discourse — such  as  the  loss  to  national  wealth 
by  a  bounty  to  a  pursuit  that  can  not  be  profitably  followed  with- 
out it;  the  unfixing  the  true  standard  of  labor  in  the  minds  of  the 
people,  which  should  always  be  demand  and  supply;  its  formation 
of  classes,  struggling  for  more  and  more  benefits  the  more  they 
get;  its  begetting  the  worship  of  Mammon  as  the  greatest  good  in 
human  life;  its  encouragement  of  extravagant  expenditures  of  the 
pfople's  money;  the  reason  and  effect  of  closing  factories  or  put- 
ting employes  upon  half  time  at  work;  why  the  operatives  get  no 
share  of  the  bounty  earned  by  their  lafior;  why  it  is  that  protected 


172  OUR    FEDERAL    RELATIONS. 

goods  can  be  sold  in  foreign  markets  for  less  than  at  home;  the 
demoralization  of  giving  favors  to  the  private  business  of  individu- 
als by  the  action  of  the  government,  engendering  discontent  and 
disloyalty;  and  the  controlling  power  of  combined  capital  to  di- 
rect the  course  of  taxation,  so  as  to  add  to  its  profits.  Pretermit- 
ting all  these,  it  may  be  of  interest  to  ascertain  and  ftx  as  nearly 
as  practicable  the  real  burden  imposed  upon  the  people  by  this 
high  protective  tariff.  I  find  it  stated  that  by  the  census  of  1880 
there  were  in  round  numbers  a  population  in  the  United  States  of 
fifty  millions,  composed  of  ten  millions  of  families,  and  revenue 
collected  of  about  four  hundred  millions  of  dollars,  by  which  a 
tax  was  imposed  of  about  eight  dollars  per  capita,  and  about  forty 
dollars  per  family.  This  general  average  estimate  includes  thou- 
sands of  persons,  and  even  of  families  whose  wealth  enables  them 
to  bear  high  taxes  without  any  feeling  of  oppression.  The  large 
class  of  people  who  are  most  affected  are  those  who  make  a  living 
by  their  own  work,  either  with  or  without  property  to  aid  them  in 
doing  it,  of  whom  there  are  from  fifteen  to  twenty  millions — about 
eight  millions  being  devoted  to  agricultural  pursuits.  At  least  one- 
half  of  the  articles  that  they  have  to  buy  annually  for  the  use  of 
themselves  and  of  their  families,  if  they  have  them,  are  such  things 
as  are  embraced  in  the  schedules  of  the  tariff.  An  average  tariff 
of  47  per  cent,  on  the  articles  thus  purchased  is  in  effect  the  same 
as  though  the  government  should  impose  a  tax  upon  them  in 
money  equal  to  47  per  cent,  of  the  value  of  the  articles  purchased. 
The  articles  purchased  are  the  products  of  the  current  labor  de- 
voted to  the  business  in  which  such  persons  are  engaged ;  and 
therefore  the  tariff  takes  from  them  in  effect  a  tax  upon  their  labor 
performed  in  making  the  money  to  buy  such  articles.  Though 
there  may  be  no  means  of  ascertaining  the  exact  burden  imposed 
upon  this  large  class  of  persons,  still  it  is  evidently  extremely 
onerous  from  the  well  known  fact  that  the  great  majority  of  this 
laboring  class  spend  annually  nearly  all  of  their  hard  earnings  for 
a  bare  support  in  humble  respectability. 

It  is  peculiarly  oppressive  upon  the  farming  class,  very  few  of 
whom  get  any  protection.  The  farmer  pays  a  duty  upon  much  of 
the  material  that  enters  into  the  construction  of  his  residence,  and 
other  buildings,  of  his  wagon,  plows,  and  other  farming  imple- 
ments, also  upon  the  clothes,  bedding,  and  other  household  and 
kitchen  furniture,  and  indeed  upon  almost  everything  necessary  to 
be  used  in  a  family  in  the  most  ordinary  circumstances,  excepting 
bread  and  meat,  and  the  vegetables  and  fruits  of  his  farm.  That 
it  is  extremely  oppressive  upon  the  farmer  is  evidenced  by  the  re- 
markable depression  of  the  farming  interest  at  present.  I  have 
seen  it  reported  that  in  the  ten  Northwestern  agricultural  States 
there  are  estimated  to  be  farm  mortgages  to  an  amount  largely 
over  two   billions   of  dollars,  and    even  ten  millions  of  dollars  in 


OUR   FEDERAL   RELATIONS.  173 

Texas,  notwithstanding  our  homestead  protection.  So  depressed 
has  this  business  become  of  late  years,  that  a  farmer  may  own 
enough  good  land  to  cultivate  himself,  with  stock  and  implements 
to  work  it,  and  make  fair  crops  without  being  able  to  make  but  lit- 
tle more,  if  any,  than  a  bare  support  for  himself  and  family,  by  the 
hardest  kind  of  work  and  close  economy.  Let  the  investigator  go 
where  he  will  throughout  Texas,  and  throughout  all  of  the  cotton 
States,  that  make  seven  millions  of  bales  of  cotton,  which  is  fur- 
nished to  the  cotton  mills  of  America  and  Europe;  let  him  visit 
the  farm  houses  and  farms,  see  the  million  and  more  of  laborers — 
white  and  black — that  make  that  cotton;  enquire  into  their  mode 
of  life,  their  hard  labor,  and  their  financial  condition,  and  he  may 
then  be  able  to  estimate,  without  fixing  the  respective  amounts  in 
dollars  and  cents,  that  one-fourth,  or  one-fifth,  or  one-sixth,  or  at 
least  one-tenth  of  the  money  value  of  their  labor,  accordingly  as 
they  may  furnish  themselves  with  the  necessaries  of  life,  is  taken 
from  them  by  this  protective  tariff  to  add  to  the  wealth  of  the  com- 
paratively few  manufacturers  far  more  than  for  the  support  of  the 
government.  In  former  times  a  rural  home  was  the  pride  of  the 
people  of  this  country;  a  place  of  peace,  independence,  and  plenty. 
Now  many  who  can,  or  must  do  it,  are  fleeing  from  the  country, 
and  seeking  employment  in  trade,  or  some  other  business,  in  towns 
and  cities,  under  the  hope  that  easier  and  more  profitable  employ- 
ments will  better  enable  them  to  bear  up  under  the  tax  imposed 
upon  their  labor  by  the  protective  tariff  of  the  United  States,  and 
the  tax  upon  their  property,  if  they  have  any  left,  by  their  State. 

Thus  the  great  mass  of  people  in  this  country,  who  have  to  work 
for  a  livelihood,  whose  labor  builds  up  the  wealth,  feeds  the  peo- 
ple, and  furnishes  the  raw  material  that  generates  the  great  com- 
merce of  this  country,  are  placed  in  degraded  disfavor  by  the 
manner  in  which  the  taxes  are  levied  upon  their  labor  and  industry, 
instead  of  being  levied  upon  the  property  and  incomes  of  the  rich, 
and  other  property  holders,  who  are  living  in  ease,  and  often  in 
luxurious  extravagance,  relieved  to  a  great  extent  from  taxes  to 
support  the  government  that  protects  their  property. 

Such  a  tax,  imposed  directly  on  each  individual  in  dollars  and 
cents  expressed,  could  not  be  collected  without  the  aid  of  an 
overwhelming  military  force,  subjugating  the  people  and  reducing 
them  to  hopeless  slavery. 

It  must  not  be  understood  that  this  presentation  of  our  condi- 
tion in  regard  to  taxation,  inadequate  as  it  may  be,  is  designed  as 
a  reflection  upon  the  many  distinguished  and  good  men  who  are 
the  congressmen  of  to-day.  They  did  not  fix  their  position  and 
duties  as  legislators.  That  was  done  by  their  predecessors,  rang- 
ing through  many  years  back,  who  fastened  certain  policies  upon 
the  government  of  the  country.  Those  of  them  who  in  late  years 
have   entered   Congress  have   simply  dropped  into  a  long-flowing 


174  OUR  FEDERAL  RELATIONS. 

current,  that  drifts  them  along  in  its  settled  course  without  the 
power  of  arresting  or  diverting  it  otherwise  than  by  years  of 
arduous  efforts,  if  ever.  They  find  themselves  in  an  organized 
body,  acting  as  the  delegated  managers  of  the  private  pecuniary 
interests  of  all  the  people  as  one  great  family,  distributing  benefits 
to  persons,  to  classes,  and  to  sections  of  country,  and  imposing 
burdens  upou  others  according  to  policies  long  since  inaugurated, 
and  now  brought  to  full  maturity  of  operation. 

It  assumes  to  take  cognizance  of  and  watchful  care  for  all  of 
the  private  occupations  and  pursuits  of  individuals  and  classes, 
and  of  the  private  and  public  welfare  of  all  of  the  people  from  the 
Atlantic  to  the  Pacific  oceans,  and  from  the  gulf  to  the  great  lakes, 
not  omiting  an  occassional  concern  about  the  fisheries  of  the 
north  and  the  operations  at  Nicaragua  and  Panama,  as  well  as 
upon  the  high  seas  and  islands.  The  immense  multiplicity  of 
subjects  thus  embraced  furnishes  continually  some  one  or  more 
perplexing  questions  to  be  solved,  as  the  negro  problem,  then 
the  railroad  regulation,  and  now  the  trusts.  These  may  pass 
away  in  time,  but  the  one  perplexing  question  that  stays — that 
has  staid  with  bitter  strife  for  more  than  fifty  years  past,  and 
still  says,  and  will  not  down, — is  the  protective  tariff.  The 
Senate  of  the  United  States  was  made  famous  as  one  of  the 
most  dignified  bodies  of  modern  times  by  the  discussions  of 
great  principles  and  measures  of  state  by  great  men.  We  may 
now  behold  the  spectacle  of  grave  senators  representing  States 
of  the  Union  in  that  body  engaged  in  an  earnest  disputation  or 
consultation  over  the  bounty  to  be  given  to  the  man  who  makes 
gentlemen's  and  ladies'  cuffs,  and  spool  thread,  and  buttons 
and  brooms,  and  soap,  and  thousands  of  other  things  great  and 
small  contained  in  the  schedule  of  the  tariff.  What  a  descent 
from  their  high  position!  "O  temporal  O  mores!"  And  the 
worst  of  it  is  that  interested  parties  from  all  over  the  country 
are  continually  besetting  them  to  give  them  information  how  to  do 
it,  presumable  because  they  do  not  know  how  to  doit  themselves. 
And  it  is  safe  to  say  that  very  few  members  of  Congress  ever 
will  know  as  long  as  the  effort  is  made  to  adjust  a  different 
duty  upon  three  or  four  thousand  different  articles  in  the  tariff 
law.  How  long  will  this  unjust  contribution  from  muscle  to  money 
continue? 

It  will  continue  until  the  American  mind  can  be  educated  up  to 
the  full  understanding,  if  ever  it  can  be,  that  the  people  in  this 
country  of  grand  and  exhaustless  natural  resources,  in  all  of  the 
means  of  individual  and  national  wealth,  are  capable  of  taking  care 
of  themselves,  and  need  not  to  be  taken  care  of  as  the  children  of  a 
large  family;  and,  if  a  tariff  is  continued,  that  the  true  province 
of  the  federal  government  is  to  lay  on  ez// foreign  importations  one 
uniform  ad  valorem  tariff,  just  sufficient  to  defray  the  necessary 


OUR    FEDERAL    RELATIONS,  1 75 

expenses  of  an  economical  republican  government,  which  will  lift 
a  great  burden  from  the  consumers  and  will  still  be  ample  pro- 
tection for  domestic  manufacturers.  The  whole  country  would 
then  stand  upon  its  own  abundant  resources  for  the  advancement 
of  its  own  material  prosperity,  as  it  should  do. 

A  just  financial  system  being  thus  permanently  established  all 
other  things  would  adapt  themselves  to  it. 

Then  members  of  of  Congresss  would  no  longer  be  elected  as 
advocates  of  a  particular  private  interest! 

Then  the  wrangle,  wrangle  over  protection  that  has  rung  in  the 
people's  ears  for  a  half  a  century  would  cease! 

The  extravagant  expenditure  would  lose  the  motive  that  has  so 
long  prompted  it! 

Then  the  almighty  dollar  of  to-day  would  lose  its  power  to  con- 
trol elections! 

And  then  the  government — truly  republican — being  just  to  all 
and  giving  special  favors  to  none,  would  be  the  pride  and  blessing 
of  a  patriotic  people. 

And  better  still,  if  the  time  should  ever  come  when  it  shall  be 
seen  and  acted  on,  that  the  true  principle  in  a  republic  is  that  the 
labor  materialized  into  permanent  property  shall  be  made  to 
support  the  government  mainly  if  not  entirely,  and  not  the  labor 
itself  in  the  effort  of  the  acquisition  of  property,  the  vast  majority 
of  people,  the  millions  who  reach  maturity  of  manhood  and  woman- 
hood, and  who  must  commence  their  life-work  for  their  own  self- 
elevation  without  property  to  assist  them  in  it,  would  be  encourag- 
ed to  improve  their  condition  in  life,  with  the  knowledge  that  the 
government  did  not  impose  any  drawback  upon  their  labor  by  tax- 
ing the  necessaries  oflife.  Had  such  a  principle  been  acted  on 
during  the  past  one  hundred  years  in  the  United  States  there  would 
not  have  been  so  many  millionaires,  but  its  tendency  would  have 
been  to  have  exhibited  a  widespread  general  elevation  of  the  great 
mass  of  the  peoi>4e,  that  would  have  made  American  citizenship 
honored  all  over  the  enlightened  world. 


UISTIVERSITy  OF  TEXAS. 


PUBLIC  LECTURE,  BY  PROF.   O.  M.  ROBERTS. 


THE  USE  AND  MISUSE  OF  THE  PRINCIPLE  IN  THE  EXPRESSIONS  :  "ALL 
MEN  ARE  CREATED  EQUAL.  THEY  aRe  ENDOWED  BY  THEIR  CREA- 
TOR WITH  CERTAIN  INALIENABLE  RIGHTS;  AMONG  THESE  ARE  LIFE, 
LIBERTY,  AND  THE   PURSUIT  OF  HAPPINESS." 


It  has  been  said  "  that  a  people  cannot  escape  their  history." 
That  depends  upon  whether  or  not  it  has  been  faithfully  recorded 
for  its  transmission  to  future  ages.  Having  lived  during  the  occur- 
rence of  great  public  events  in  this  country,  I  have  felt  it  to  be  a 
duty,  in  public  lectures  here,  to  set  forth  the  facts  pertaining  to 
them,  with  their  results,  as  impartially  as  I  can  from  a  Southern 
staadpoint,  for  the  information  of  those  of  subsequent  periods,  who 
could  have  no  personal  knowledge  of  them. 

These  two  propositions  asserted  in  the  Declaration  of  Indepen- 
dence, written  by  Thomas  Jefferson,  and  adopted  by  the  Conti- 
nental Congress,  on  the  4th  of  July,  1776,  may  be  seen  to  have  a 
proper  relation  to  each  other,  by  reversing  the  position  in  which 
they  are  placed,  so  as  to  read:  All  men  are  endowed  by  their  Cre- 
ator with  certain  inalienable  rights;  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness;  and  that  in  respect  to  those  rights, 
they  are  created  equal. 

They  were  announced  as  a  predicate  for  what  immediately  fol- 
lows, which  is,  "that  to  secure  these  rights,  governments  are  insti- 
tuted, deriving  their  just  powers  from  the  consent  of  the  governed; 
that  whenever  any  government  becomes  destructive  of  these  ends, 
it  is  the  right  of  the  people  to  alter  or  abolish  it,  and  to  institute 
a  new  goverment,  laying  its  foundation  on  such  principles,  and 
organizing  its  powers  in  such  forfti,  as  to  them  shall  seem  roost 
likely  to  affect  their  safety  and  happiness."  This  connection 
shows  that  the  rights  referred  to  are  social  rights,  pertaining  to 
men  as  members  of  society,  which  are  here  claimed  to  be  inalien- 
able, because  they  are  rights,  upon  the  maintenance  of  which, 
their  existence  and  well-being  as  individuals  depend.  It  is  the 
right  that  pertains  to  each  individual,  recognized  by  the  law  as  the 
right  of  self-defense  in  society.  It  is  personal  in  the  sense,  that 
each  one  can  exercise  it  for  himself.     But  it  does  not  give  him  the 


right  of  defense  of  another  person,  except  the  aggression  to  be  re- 
sisted applies  to  both  persons  in  some  common  cause.  As  in  a 
case  where  the  government  by  its  actions  endangers  the  rights  ot 
the  people,  so  as  to  be  a  common  grievance.  Then  each  person 
may  act  with  and  for  each  and  every  other  person  in  the  associ- 
ation, for  the  common  self-defense  of  their  rights  held  in  common. 
In  discussing  the  application  of  this  right,  by  which  important 
results  have  been  accomplished,  it  is  necessary  to  keep  this  dis- 
tinction in  the  exercise  of  the  right  in  view.  It  is  in  analogy  to 
this  distinction  that  the  law  of  nations  does  not  allow  the  people 
of  one  nation  to  interfere,  for  the  correction  of  evils  existing  upon 
the  people  of  another  nation,  while  they  may  exert  themselves  to 
correct  evils  in  their  own  nation. 

Like  the  right  of  self-defense,  which  is  universally  recognized 
as  both  a  natural  and  legal  right,  its  exercise  is  appropriate  when, 
and  only  when,  the  aggression  upon  it  is  made  by  some  one  who 
has  no  right  to  make  the  aggression.  When  there  is  no  aggression 
upon  a  particular  person,  his  right  of  self-defense  is  not  required 
to  be  exercised.  Nor  is  it  required  or  permitted  to  be  exercised 
by  one  person  for  the  defense  of  another  person,  who  does  not  oc- 
cupy such  a  relation  to  him  as  gives  him  a  legal  right  to  do  it,  as 
in  the  case  of  a  parent's  right  to  defend  his  child,  which  does  not 
equally  apply  to  the  defense  of  a  stranger.  Suppose  a  person 
should  undertake  to  defend  a  stranger,  that  he  may  deem  to  have 
been  unjustly  aggressed  upon  by  another,  it  is  not  upon  this  right 
of  self-defense  that  he  would  act,  but  it  would  be  upon  an  assumed 
right  to  be  the  champion  defender  of  the  right  of  another,  that  had 
been  endangered,  upon  some  sentiment  of  humanity  or  of  justice, 
or  as  sometimes  it  is  done,  by  one  who  is  actuated  by  the  selfish 
motive  to  gain  the  approbation  of  others,  as  being  a  chivalric 
suppressor  of  wrong  generally. 

True,  our  municipal  law  permits  a  person  to  defend  a  stranger 
that  is  attacked  in  a  manner  that  puts  his  life  in  immediate  and 
imminent  danger,  to  the  extent  even  of  killing  the  assailant,  when 
the  necessity  for  the  interference  is  apparent.  This  is  a  right  to 
act  which  is  given  by  the  government,  that  is  permissive  and  not 
compulsory,  and  when  practised  it  is  the  right  of  the  government 
being  exercised  by  the  individual.  And  so  it  is  in  any  other  case 
in  which  one  man  is  permitted  to  act  in  the  defense  of  another  by 
the  law  of  the  land.  Whatever  may  be  the  right  or  motive  upon 
which  such  act  is  performed  by  one  person  for  another,  it  is  not  by 
the  right  asserted  to  belong  to  all  men  in  the  Declaration  of  Inde- 
pendence. 

Having  endeavored  to  convey  a  definite  view  of  the  nature  of 
the  right  asserted  to  have  been  endowed  upon  all  men,  it  will  be 
proper  to  consider  how  it  was  intended  to  be  be  applied.  An  ex- 
pression may  be  used  in  an  instrument  of  any  kind,  which  may  be 


appropriate  to  the  subject  matter  treated  of,  in  the  connection  in 
which  it  is  found,  which,  as  an  isolated  proposition,  may  not  be 
universally  correct  in  evefy  respect. 

There  may  be  expressions  in  the  opinion  of  a  judge  in  deciding 
a  case,  which  may  be  objectionable  as  abstract  propositions,  and 
which,  when  applied  to  the  facts  and  law  of  the  case  under  con- 
sideration, may  have  been  used  to  reach  a  proper  result,  and  be 
appropriate  in  that  respect. 

The  proper  meaning  to  be  attributed  to  such  expressions,  when 
found  in  any  instrument,  must  be  arrived  at  by  a  consideration  of 
the  general  purpose  of  the  instrument,  in  view  of  the  circum- 
stances, at  the  time  and  place,  when  and  where  they  were  made. 
What,  then,  was  the  general  purpose  of  making  the  Declaration  of 
Independence  in  which  these  expressions  are  found?  During  the 
ten  years  preceding  the  adoption  and  publication  of  it  on  the  4th 
day  of  July,  1776  by  the  Congress,  there  had  been  a  co-operative 
effort  by  the  American  colonies  to  induce  the  English  government 
to  abandon  its  purpose  of  taxing  the  colonists  to  raise  a  revenue 
to  be  devoted  to  the  English  treasury  without  th§ir  consent.  The 
effort  was  by  petition,  remonstrance,  and  other  pacific  means,  such 
as  subjects  of  the  English  government  could  appropriately  resort 
to  for  the  redress  of  grievances.  There  was  then  no  political  con- 
nection between  the  colonies.  Their  action  was  co-operative  only 
for  the  redress  of  a  grievance  which  was  common  to  each  and  all 
of  them,  and  their  co-operation  was  to  give  greater  force  to  their 
complaints,  than  if  presented  singly  by  each  colony. 

The  political  connection  of  each  colony  was  directly  with  the 
English  government,  as  the  sovereign  power  over  it.  Whatever 
powers  of  local  government  within  its  defined  territorial  limits  it 
had,  were  granted  by  a  charter  from  the  crown,  and  by  the  law  of 
parliament,  regulating  its  trade  and  commerce.  The  reciprocal 
obligation  of  allegiance  and  protection  existed  between  the  colo- 
nists and  the  English  government.  It  was  in  effect  an  English  gov- 
ernment established  over  English  subjects,  within  a  certain  defined 
territory  in  America.  As  is  the  case  with  all  governments,  it  was 
ostensibly  established  for  the  protection  of  life,  liberty,  and  pursuit 
of  happiness  of  the  people  in  the  colony,  who  were  governed  by  it. 
Nothing  had  occurred  to  materially  excite  the  apprehension  of  the 
colonists,  that  any  different  purpose  was  designed  by  the  ruling 
power,  until  the  English  parliament  had  assumed  the  right  to  tax 
the  colonists,  not  to  defray  the  expenses  of  the  colonial  govern- 
ment, but  to  be  added  as  general  revenue  to  the  English  treasury, 
to  defray  the  expenses  generally  of  the  English  governmenl.  If  the 
colonists  submitted  to  the  right  thus  assumed,  its  exercise  had  no 
limit,  and  their  prosperity,  and  even  livelihood  depended  upon  the 
will  of  a  power,  over  which  they  could  not  possibly  have  any 
control. 


England  persisting  in  the  claim  of  the  right,  sent  troops  to  Amer- 
ica to  enforce  it,  which  early  in  1775  resulted  in  a  hostile  conflict 
in  one  of  the  colonies,  when  each  one  of  the  colonies  co-operated 
with  the  others  in  resistance  to  the  enforcement  of  the  right  by  the 
military  forces.  This  was  a  defensive  co-operation,  which  requir- 
ed action  in  each  of  the  colonies  independent  of,  and  in  disregard 
of  the  English  rule,  to  the  extent  necessary  to  join  in  the  common 
cause  of  defense.  This  action  was  provisional,  in  anticipation  of 
a  possible  reconciliation  upon  honorable  terms,  which  so  contin- 
ued until  early  in  1776,  when  all  hopes  of  such  a  reconciliation  had 
to  be  abandoned.  Then  it  was  that  Congress,  composed  of  dele- 
gates from  all  the  colonies,  advised  the  people  in  each  one  of  the 
colonies  to  take  such  action  as  would  be  a  public  and  definite  re- 
nunciation of  their  connection  with,  and  subjection  to  the  English 
government,  which  was  by  making  a  new  social  compact  for  an  in- 
dependent government  of  their  own,  based  upon  the  sovereignty  of 
the  whole  body  of  the  people  of  the  colony. 

The  people  of  each  and  all  of  the  colonies  promptly  acted  on 
this  advice,  and  separately  in  each  proceeded  to  form  a  republi- 
can constitution  (except  Rhode  Island),  providing  for  a  free  and  in- 
dependent State;  so  that  each  one  of  them  had  assumed  the  abso- 
lute control  of  their  own  public  affairs  before  the  date  of  the  Dec- 
laration of  Independence.  The  Congress,  with  a  knowledge  of 
that  fact  as  an  accomplished  fact,  made  the  declaration  for  and  on 
behalf  of  the  thirteen  States  so  already  established. 

The  objects  of  the  declaration  were  to  give  public  notice  of  the 
then  existing  facts,  "That  these  United  Colonies  are,  and  of  right 
ought  to  be.  Free  and  Independent  States;  that  they  are  absolved 
from  all  allegiance  to  the  British  Crown,  and  that  all  political  con- 
nection between  them  and  the  State  of  Great  Britain  is,  and  ought 
to  be  totally  dissolved;"  and  to  state  facts  indicating  the  dissolu- 
tion by  the  people  of  the  colonies,  and  to  announce  the  principles 
upon  which  they  had  acted  in  forming  independent  governments  of 
their  own  respectively. 

The  facts,  stated  in  vindication  of  the  dissolution,  exhibited  the 
conduct  of  England  to  be  such  as  gave  the  people  no  assurance  of 
the  protection  of  life,  liberty,  and  the  pursuit  of  happiness,  by 
which  they  were  absolved  from  their  allegiance  to  the  British 
Crown,  and  being  thus  absolved,  the  people  that  belonged  to  each 
colony  had  instituted  a  government  based  upon  the  equal  right  of 
each  person  in  the  association  to  participate  in  its  formation  so  as 
to  form  a  free  and  independent  State.  It  is  to  be  observed  in  all 
this  co-operative  action  the  colonists  acted  on  this  principle  of 
self-defense,  with  which  it  was  stated  all  men  are  endowed  when 
the  right  is  attacked.  It  was  self-defense  of  each  one  of  the  colo- 
nists in  each  one  of  the  colonies.  The  attack  was  upon  the  right 
pertaining  to  all  of  them  alike,  which  gave  them  a  right  to  co-op- 


erate,  in  first  seeking  to  avert  it  by  pacific  means,  and,  afterwards, 
when  the  attack  was  sought  to  be  enforced  by  military  power,  to 
co-operate  in  a  common  defense  of  the  right  against  a  military 
power.  The  assumption  ot  the  power  to  tax  at  discretion  and 
without  limit,  necessarily  included  the  power  to  jeopardize  the 
life,  liberty,  and  well-being  of  every  colonist  in  America,  both  as 
an  individual  and  as  a  member  of  a  colonial  association.  Although 
the  force,  that  brought  on  hostilities,  was  exhibited  in  Massachu- 
setts, the  people  in  the  other  colonies  were  justified  in  co-operative 
resistance  for  the  protection  of  the  right,  that  pertained  to  each 
and  all  of  them,  and  which  could  only  be  protected  by  joint  co- 
operation, and  not  by  separate  individual  effort.  Thus  the  right 
of  each  one  of  the  colonists  became  the  joint  right  of  all  in  a  com- 
mon defense  of  it. 

The  question  maybe  asked  is  this  aright? 

In  view  of  the  practical  transactions  then  under  consideration, 
t*  which  it  was  intended  to  be  applied,  the  proposition,  that  men 
are  endowed  with  the  inalienable  right  to  life,  liberty,  and  the  pur- 
suit of  happiness,  is  correct.  To  appreciate  this,  we  must  consid- 
er the  relation  between  society  and  government,  or  between  an  as- 
sociation of  people  bound  together  by  some  common  tie,  and  the 
established  rules  of  action  by  which  they  are  controlled  in  the  as- 
sociation. Man  is  prompted  to  live  in  association  with  his  fellow- 
man  by  the  attributes  of  his  nature,  which  instinctively  demand 
their  exercise.  Those  which  distinguish  him  as  man  amongst  cre- 
ated beings  can  only  be  exercised  in  society,  and  not  in  lonely  iso- 
lation. They  force  him  to  be  gregarious,  and  join  himself  to  oth- 
ers. It  is  not  from  want  or  fear,  as  has  been  supposed.  It  is  his 
natural  element.  He  does  not  come  into  society  upon  a  judgment 
of  its  advantages^  and  surrender  a  portion  of  his  natural  rights 
that  he  may  enjoy  the  rest  of  them.  It  is  not  a  question  of  calcu- 
lation at  all,  for  he  is  born  in  it,  and  lives  in  it  as  the  position  for 
which  he  is  fitted  by  his  nature  as  man.  Wherever  and  whenever 
people  are  collected  together  in  association  their  employments, 
and  the  nature  of  them,  are  dependent  upon  their  natural  and  ac- 
quired attributes,  and  the  physical  objects  by  which  they  are  sur- 
rounded, in  the  locality  inhabited  by  them,  and  by  their  standard 
of  civilization.  Their  rules  of  action  individually  and  collectively 
must  be  conformable  and  adapted  to  their  employments,  which  re- 
sults in  government  of  some  sort  as  a  necessity.  Such  a  govern- 
ment is  not  a  "necessary  evil."  It  is  a  necessary  benefaction  and 
blessing  to  harmonize  the  possibly  conflicting  elements  in  the  as- 
sociation, and  to  preserve  the  association  itself  in  whatever  progress 
it  may  make  in  the  ascending  scale  of  civilization,  in  obedience  to 
and  consequent  upon  the  innate  yearnings  of  man's  attributes. 

Hence  it  is  that  all   combined  associations,  whether  as  families 
or  tribes  in  the  primitive  ages,  or  as   more  regularly  organized  as- 


6 

sociations,  when  first  instituted  amongst  men,  and  afterwards  as 
they  advanced  by  a  regular  progression,  until  they  arrived  at  the 
complex  ramifications  in  modern  times,  governments  have  existed 
over  all  of  them  as  a  resultant  concomitant. 

All  of  its  members  are  governed,  the  governors  as  well  as  the 
governed.  This  applies  even  to  an  absolute  monarchy,  as  well  as 
to  a  republic.  The  monarch  governs  his  subjects,  and  they  gov- 
ern him.  For  if  he  prescribes  and  executes  permanently  rules  of 
action,  that  debase  their  manhood,  and  denies  to  them  the  rights 
of  life,  liberty,  and  the  pursuit  of  happiness,  he  will  not  long  re- 
main their  monarch;  and  a  knowledge  of  that  fact  governs  him. 
Whether  he  or  they  create  anarchy,  it  cannot  live.  It  lives  only 
upon  and  during  the  continuance  of  its  own  throes,  to  be  certainly 
succeeded  by  government,  in  obedience  to  the  controlling  aspira- 
tion of  man  to  strive  for  the  wellbeing  of  his  race.  In  the  physical 
elements,  the  tornado  is  anarchy's  prototype,  in  its  origin,  duration 
and  effects.  However  different,  therefore,  may  be  the  form  of 
governments,  and  however  different  may  be  the  modes  of  accom- 
plishing it,  the  general  object  in  the  institution  of  government  is, 
as  stated  in  the  declaration,  to  secure  those  fundamental  rights  of 
man. 

When  he  has  been  born  and  reared  up  under  it,  or  enters  it  by 
naturalization,  he  does  not  yield  up  or  alienate  to  the  ruling 
powers  his  rights  to  preserve  his  life,  liberty,  and  pursuit  of  happi- 
ness, by  all  the  means  that  may  practically  be  in  his  power,  what- 
ever may  be  the  wrongful  aggression  by  the  government  upon  those 
rights.  If  the  aggression  is  remediable  in  the  Bssociation,  he  may 
use  whatever  pacific  measures  are  furnished  or  permitted  to  him 
by  the  government.  If,  however,  the  grievance  complained  of  is 
intolerable,  and  affects  equally  the  great  body  of  his  fellow  men  in 
the  association,  he,  with  them,  has  the  right,  when  it  is  practica- 
ble, to  assert  and  maintain  it,  to  alter  or  abolish  the  government. 
Thus  it  was  that  "Washington  lost  the  rebel's  in  the  patriot's 
name."  The  right  equally  exists  whether  the  effort  to  maintain  it 
succeeds  or  fails. 

It  is  evident  that  a  man  is  not  presumed  to  have  made  such  an 
alienation  by  being  or  becoming  a  subject  or  citizen  of  a  govern- 
ment. The  question  still  remains,  can  he  do  it  so  as  to  irrevoca- 
bly bind  him?  What!  Can  he  alienate,  that  is,  validly  transfer 
from  himself  the  right  to  seek  his  own  happiness?  Can  he  alienate 
from  himself  his  liberty?  Can  he  alienate  from  himself  the  right 
of  life, — the  right  to  live?  There  is  no  consideration  possibly  ad- 
equate for  such  a  contract  of  transfer.  It  could  only  be  made  un- 
der a  dire  duress,  that  would  destroy  his  contracting  capacity,  and 
in  addition,  it  would  be  unconsciable,  by  whatever  formalities  it 
might  be  attempted  to  be  sanctioned.  Upon  each  and  all  of  these 
grounds,  it  would  not  be  irrevocably  binding  upon  him. 


Shakespeare  was  not  following  his  learning  in  law  and  ethics, 
but  was  rather  indulging  in  the  privilege  of  a  poetic  fancy,  when 
he  had  his  court  to  adjudge  Shylock's  debtor  to  pay  his  pound  of 
fiesh,  in  discharge  of  his  contract.  A  man  may  forfeit  his  liberty 
or  his  life,  by  his  unlawful  conduct,  but  that  is  giving  it  up  on 
compulsion,  and  not  on  contract,  either  express  or  implied.  It  is 
not  his  act  of  bargaining  away  his  right  to  his  liberty  or  life. 

Admitting  that  the  colonists  had  good  grounds  for  the  exercise 
of  this  right,  in  dissolving  their  political  connection  with  England, 
the  circumstances  were  very  favorable  then  to  its  employment,  in 
the  erection  of  republican  governments,  founded  upon  sovereignty 
of  the  people  of  each  colony,  creating  an  independent  State. 

They  had  long  been  free  from  the  influences  of  the  distinctions 
in  society,  existing  in  monarchical  countries.  There  was  then  no 
order  of  nobility  prevailing  amongst  them.  The  great  body  of  the 
people  were  farmers,  living  in  their  own  homesteads.  There  were 
then  no  large  accumulations  of  wealth,  sufficient  to  induce  persons 
to  claim  precedence  on  that  account.  There  had  not  then  arisen 
up  any  great  military  chieftans  to  dictate  upon  what  principles 
the  government  should  be  reorganized.  There  were  no  large 
cities  to  engender  corrupting  influences.  There  were  no  great 
factories  or  mines  to  be  filled  with  dependent  employees.  The 
habits  of  personal  equality  and  independence  had  been  generally 
developed  from  their  condition.  Though  there  were  many  men 
of  distinguished  ability  amongst  them,  that  of  itself  was  no  cause 
for  political  inequality  in  forming  the  government.  There  was, 
therefore,  no  ground  upon  which  to  base  a  discrimination  between 
the  people,  in  the  performance  of  the  work  undertaken  by  them. 
They  had  the  advantages  of  long  experience  in  local  representa- 
tive government,  with  but  little  interference  from  the  sovereign 
power  in  their  public  affairs. 

Having  renounced  their  allegiance  to  the  sovereign  power,  it 
was  necessary  to  recognize  auother  sovereign  power,  upon  which 
to  base  their  government.  And  in  their  condition,  it  was  most 
appropriate  to  recognize  it  as  a  right  existing  in  the  whole  body  of 
the  people  in  each  colony. 

The  condition  of  things  then  generally  existing  in  Amereca 
were  exactly  such  as  were  necessary  to  establish  a  government  in 
which  the  whole  body  of  the  people  could  participate  in  its  forma- 
tion and  administration,  and  rendered  it  i)racticable  to  establish 
for  themselves  true  republican  equality;  which  is  where  each  indi- 
vidual is  allowed  to  promote  his  own  self-elevation,  by  any  lawful 
pursuit,  without  any  drawback  or  unequal  burden  being  imposed 
on  him  by  the  government  for  the  benefit  of  others,  except  for  the 
public  good,  wherein  he  would  be  included  equally  with  the  othcr«. 

When  such  a  government  would  be  carriedon  for  the  protection 
of  person  and  property,  there  would  be  no  great  difficulty  in  ap- 


8 

portioning  the  benefits  and  burdens  equally, — approximately  at 
least.  The  difficulty  of  adjustment  arises  in  the  adoption  of  meas- 
ures for  the  public  good,  which  the  political  wisdom  of  the  states- 
men has  seldom  been  able  to  surmount.  As  experience  has  shown, 
this  extravagant  effort  for  the  public  good  has  infused  into  govern- 
ments paternalisms,  that  create  inequalities  in  benefits  and  burdens, 
that  may  produce  tyranny,  the  same  as  may  be  found  in  monarchies. 
It  refutes  the  theory  upon  which  republics  are  founded,  that  by 
giving  each  individual  an  equal  voice  in  the  creation  and  adminis- 
tion  of  the  government,  he  would  be  equally  able  to  protect  his 
rights,  and  avert  the  imposition  of  unequal  burdens.  The  public 
good-claim  often  enables  the  majority  to  oppress  the  minority,  and 
that  is  not  the  worst  of  it,  for  it  may  enable  the  interested  few  to 
so  manipulate  the  government,  as  to  oppress  the  great  body  of  the 
people  for  the  enrichment  of  themselves.  This  public  good,  while 
good  in  itself,  when  properly  applied,  is  too  often  the  bane  of  re- 
publics, when  it  is  disguised  as  the  wolf  in  sheep's  clothing.  The 
instances  of  such  disguises,  and  their  injurious  effects,  are  now  too 
numerous,  and  too  notorious  to  require  that  they  should  be  here 
specifically  pointed  out  to  an  intelligent  public.  The  boasted 
claim  of  self-government  has  been  verified  to  the  extent  of  having 
dispensed  with  the  necessity  of  a  hereditary  peerage  in  this  coun- 
try. But  self-government,  under  a  written  constitution,  with  its 
powers  and  objects  strictly  adhered  to,  required  much  more  than 
the  founding  of  governments  upon  the  equality  and  inalienable 
rights  of  all  men,  as  asserted  in  the  Declaration  of  Independence. 
Even  that  great  achievement  may  in  time  be  attained,  as  we  may 
hope,  when  the  great  body  of  men  in  the  organized  association 
shall  have  learned  and  acted  on  the  principle,  that  the  public  good 
may  best  be  accomplished,  by  each  one  respecting  the  rights  of 
others  equally  as  he  respects  his  own. 

This  expression  that  "all  men  are  created  equal,"  is  misapplied, 
when  it  is  understood  to  pertain  to  all  races  of  mankind.  The  red 
men  of  America,  and  the  negroes  of  Africa  have  made  but  little 
improvement  in  their  condition  socially  during  many  centuries, 
whereas  the  men  of  Europe  in  the  same  time  have  arisen  from  a 
low  to  a  high  state  of  civilization.  This  difference  cannot  be  at- 
tributed entirely  to  the  difference  in  the  localities  of  the  different 
races.  It  must  have  been,  to  a  considerable  degree,  attributable 
to  a  difference  in  mental  and  physical  organizations.  The  race  in 
Europe  were  endowed  with  a  greater  designing  and  inventive 
capacity,  that  enabled  them  to  add  improvements  upon  the  first 
advancements  upwards,  from  age  to  age,  while  the  social  condition 
of  the  other  races  remained  stationary,  because  they  did  not  have 
that  capacity  in  the  same  degree.  In  addition  to  the  difference  in 
the  original  endowment,  it  has  greatly  increased  in  the  reproduc- 
tion of  the  white  race,  during  the  different  stages  of  its   advance- 


Hient  by  the  effect  of  heredity.  It  is  not  necessary  to  adopt  the 
whole  of  the  Darwinian  theory,  to  recognize  the  fact  that  the  nat- 
ural mental  capacity  of  the  white  race  has  been  gradually  improved 
by  their  increasing  culture  during  many  centuries.  This  progres- 
sion has  been  produced  as  a  general  result,  notwithstanding  there 
may  have  been  particular  instances,  in  which  the  improvement  was 
not  exhibited. 

Now,  the  interesting  problem  is,  can  the  red  and  black'races, 
with  their  natural  mental  and  physical  organization,  be  raised  to 
an  equal  standard  with  the  white  race,  by  education  in  schools, 
the  same  as  those  attended  by  the  white  race.  That  they  can  is 
as  yet  only  a  theoretical  assumption,  upon  the  belief  of  the  historic 
account  of  the  original  unity  of  the  race  of  mankind.  Rut  is  it 
not  more  probable,  that  their  peculiar  natural  organization  has 
been  through  many  centuries,  so  permanently  fixed  upon  them, 
that  no  improvement  which  they  can  in  time  acquire,  will  prevent 
them  from  ultimately  disappearing  before  the  power  of  the  white 
race?  That  is  the  inexorable  law  of  races  on  this  earth,  however 
lauduble  may  be  the  humanitarian  efforts  to  change  it,  notwith- 
standing the  means  and  time  of  its  accomplishment  cannot  now 
be  foreseen.     This  is  the  lesson  taught  by  all  history  of  the  past. 

It  would  be  equally  erroneous  to  apply  this  eciuality  to  the  nat- 
ural capacity  of  all  the  persons  of  the  white  race-  It  has  been  said 
that  the  mind  of  a  child  is  like  a  white  sheet  of  paper,  susceptible 
of  such  impressions  as  may  be  made  upon  it  by  training  and  edu- 
cation. Experience  shows  that  there  is  an  innate  mental  and 
physical  organization  in  most  children,  that  indicates  in  what  di- 
rection the  most  improvement  may  be  made  by  training  and  edu- 
cation. Instead  of  universal  sameness  in  natural  organization,  it 
would  be  safer  to  affirm  universal  diversity,  in  that  as  in  most  other 
work  of  nature.  If  all  men  were  organized  just  alike,  society 
would  present  an  aspect  of  stagnation,  and  improvements  would 
more  likely  result  from  accident  than  from  design.  It  is  this  in- 
equality in  mental  structure  that  has  been  the  mainspring  of  civil- 
ization throughout  all  ages  of  the  past,  and  is  now  equally  so.  Its 
starting  point,  in  every  step  of  the  advance  upwards,  originated 
from  the  designing  power  of  some  exceptional  mind,  by  which  the 
objects  of  natjre  have  been  made  to  do  useful  work,  either  to  aid, 
or  as  a  substitute  for  the  muscular  power,  that  was  before  necessary 
to  do  it.  This  may  be  illustrated  by  only  a  few  examples.  It  may 
well  be  imagined  what  a  revolution  was  produced  in  social  exist- 
ence, by  the  construction  and  use  of  metalic  instruments  in  works 
of  utility  in  peace  and  in  war.  The  designing  power  of  excej^tiorval 
minds  spread  the  sails  upon  the  seas,  and  made  the  wind  do  the 
work  first  done  by  the  oarsraen,  wliich  marie  commerce  throughout 
the  world  possible.  The  designing  power  of  exceptional  minds  in- 
creased the  power  of  men,  by  organizing  the    Roman  legion,    that 


10 

spread  the  Roman  institutions,  arts,  learning,  and  language  over  a 
large  part  of  the  world.  In  more  modern  times,  the  designing 
power  of  exceptional  minds  created  fire-arms  the  common  use  of 
which  disbanded  the  armies  of  subjects,  that  were  spread  all  over 
Europe  by  the  Feudal  system,  and  turned  most  of  them  over  to  the 
arts  of  peace,  and  to  the  cultivation  of  their  intellects,  which  was 
facilitated  by  the  invention  of  the  printing  press.  Under  its  influ- 
ence the  civilized  world  advanced  more,  in  all  the  ennobling  appli- 
ances of  civilization,  than  it  had  done  in  four  thousand  years  be- 
fore that  time.  Men's  minds  arose  above  the  settled  forms  of 
social  life,  of  government,  of  personal  rights,  and  the  great  men  of 
Europe  proclaimed  with  eloquence  the  principles  ©f  the  new  era  of 
human  progress.  The  spirit  of  it  was  caught  up  by  the  English 
colonists  of  America,  which  rendered  it  possible,  a  hundred  years 
ago,  to  establish  for  themselves  republican  governments. 

Such  a  government  as  that  which  they  erected,  could  not  have 
been  established  five  hundred  years  before  that  time.  The  doctrine 
that  kings  ruled  by  divine  right  had  not  then  been  exploded.  The 
rights  oi  Magna  Charta  was  not  and  could  not  have  been  claimed 
and  secured  from  the  English  monarch  by  the  maps  of  common 
people.  They  were  secured  by  the  barons,  who  were  themselves 
so  many  petty  monarchs. 

Power  and  priest-craft  manacled  the  minds  and  bodies  of  men. 
The  colonists  were  as  much  indebted  to  the  new  lights  that  had 
dawned  upon  the  minds  of  men,  in  the  period  of  their  revolution, 
as  upon  the  condition  of  their  society,  and  their  previous  training 
in  local  government.  What  shape  will  ultimately  be  given  to 
American  society,  and  to  our  republican  governments,  by  the  de- 
signing power  of  the  exceptional  minds  of  Watt  and  Morse,  in  mak- 
ing steam  and  electricity  do  work  for  man,  must  engage  the  study 
and  efforts  of  philosophers  and  statesmen  for  many  years  to  come. 

Centralism  in  government,  the  erection  of  large  cities,  the  growth 
of  corporate  power,  the  increased  conflict  between  labor  and  capi- 
tal, the  amassing  of  great  individual  wealth,  the  increased  facilities 
and  importance  of  commerce,  the  general  enlargement  of  the  ob- 
jects and  the  expenses  of  governments,  are  some  of  the  results 
which  have  already  greatly  taxed  the  powers  of  those  in  authority, 
in  efforts  for  their  harmonious  adjustment. 

Carlisle,  a  distinguished  Englishman,  said,  in  speaking  of  the 
Americans,  that  "Their  republican  governments  were  dependent 
upon  elbow-room,  and  a  traditional  respect  for  the  constable."  I 
repeat  this  quaint  saying  of  a  great  thinker  merely  to  set  other  peo- 
ple to  thinking  about  where  the  present  current  of  public  affairs 
is  drifting  to. 

The  equality  and  endowment  of  rights  announced  in  the  Decla- 
ration of  Independence  were  not  intended  to  be  applied  to  the  In- 
dians that  were  settled  in  some  of  the  colonies.     The  poor  red 


11 

men,  who  once  inhabited  all  this  country,  did  not  know  how  to 
make  powder,  and  guns,  and  plows,  and  from  their  order  of  civil- 
zation  had  neither  the  inducement  nor  the  power  to  make  them, 
and  consequently  most  of  them  went  west  as  white  men  advanced 
from  the  east.  A  few  scattered  fragments  of  tribes  were  left,  and 
remained  for  many  years,  retaining  their  tribal  state.  They  were 
not  colonists.  They  were  no  part  of  the  associations  of  persons  in 
each  colony,  who  were  active  in  renouncing  their  allegiance  to  the 
British  crown,  or  in  forming  new  governments.  They  were  under 
no  such  allegiance,  and  had  none  to  throw  off.  They  were  no  part 
of  the  body  of  people  in  whom  the  sovereignty  was  vested. 

For  the  same  and  greater  reasons  they  were  not  intended  to  be 
applied  to  the  negroes,  who  were  in  most  if  not  all  of  the  colonies. 
Because  most  of  them  were  slaves  belonging  to  their  masters,  who 
had  purchased  them  as  property.  They  were  not  there  by  their 
own  consent  as  immigrants,  but  were  brought  there  as  slaves  from 
Africa.  They  constituted  no  part  of  the  body  politic.  Slavery 
was  then  recognized  by  the  law  of  nations,  the  world  over,  except 
where  it  was  locally  prohibited,  as  it  is  now.  Where  it  was  not  lo- 
cally prohibited,  it  did  not  require  a  law  to  be  passed  to  legalize 
it.  It  had  existed  in  some  shape  long  before  the  Christian  era, 
and  afterwards  all  the  time  in  Christian  countries,  and  did  then  as 
a  just  and  rightful  ownership  of  property.  Not  only  Christian  peo- 
ple sanctioned  it  by  the  ownership  of  slaves,  but  they  engaged  in 
the  slave-trade,  and  the  governments  of  all  Christendom  sanction- 
ed it  as  lawful,  except  where  it  was  locally  prohibited.  If  they 
had  been  treated  as  members  in  the  association  that  were  acting, 
and  for  whose  benefit  the  action  was  being  taken,  it  would  have 
rendered  white  men  unequal,  just  in  proportion  to  the  number  of 
slaves  possessed  by  each  one.  The  slaves  were  under  duress  of 
imprisonment.  The  very  existence  of  a  republic  is  dependent 
upon  the  freedom  and  independence  of  the  members  of  the  asso- 
ciation that  forms  and  administers  it.  If  we  will  in  contempla- 
tion go  back  to  that  period,  and  take  a  survey  of  the  condition  of 
things,  and  of  the  public  sentiment  on  that  subject,  we  will  not  be 
surprised  that  slavery  in  the  States  was  recognized  in  the  Consti- 
tution of  the  United  States,  by  requiring  the  return  of  fugitive 
slaves  from  one  State  to  another,  by  limiting  the  time  to  iSo8, 
when  their  importation  could  be  prohibited,  and  by  apportioning 
the  representation  in  Congress  between  the  several  Slates,  so  as  to 
add  to  the  number  of  free  persons  three-fifths  of  the  number  of 
slaves.  This  last  provision  was  made  upon  a  compromise,  which 
may  not  be  regarded  as  being  then  unreasonable,  when  it  is  con- 
sidered, that  in  many  of  the  States  a  property  qualification  for  vot- 
ing was  provided  in  their  Constitutions,  and  that  all  of  the  States 
except  Massachusetts  lecognized  slaves  as  lawful  property  belong- 
ing to  their  citizens  at  that  time. 


12 

Subsequent  to  that  time,  the  misapplication  of  this  equality  and 
natural  endowment  of  rights  to  the  negro  race,  long  continued  by  the 
Northern  people,  has  produced  the  most  extraordinary  results  per- 
taining to  this  whole  country.  A  proper  discussion  of  this  will  re- 
quire some  explanatory  considerations  intimately  connected 
with  it. 

As  the  smoke  of  the  great  battles  in  the  war  between  the  States 
has  somewhat  cleared  away,  and  the  results  have  so  far  been  con- 
sumated,  we  can  with  a  more  calm  vision  scan  the  past  transac- 
tions that  led  to  it,  and  better  appreciate  their  significance  at  the 
time  and  place  of  their  occurrence. 

As  events  may  cast  their  shadows  before  them,  so  subsequent 
events,  in  a  long  train  of  them,  may  cast  back  a  light  upon  their 
connected  antecedents,  that  will  enable  us  more  fully  to  compre- 
hend their  import,  and  the  motives  that  promoted  them. 

The  maintenance  of  slavery  in  civilized  countries  in  all  former 
times  has  largely  depended  upon  self-interest.  Whenever  there  is 
a  sufficiency  or  redundancy  of  free  labor  to  do  the  necessary  work, 
and  land  has  become  very  valuable,  so  that  rents  are  high,  and  the 
price  of  slaves  has  become  high,  so  that  what  they  can  produce 
will  not  remunerate  for  the  rent  of  the  land,  their  maintenance  and 
the  interest  of  the  money  for  which  they  are  purchased,  slave  la- 
bor must  become  unprofitable,  and  will  be  abandoned. 

The  villains  in  England  were  slaves  during  many  centuries.  In 
the  time  of  Queen  Elizabeth  it  was  complained  that  there  was  a 
redundancy  of  population.  The  villains  were  manumitted,  or  al- 
lowed to  purchase  their  freedom.  Soon  after  peace  was  made 
with  England,  immigrants  following  the  course  of  commerce  poured 
into  the  Northern  States,  that  largely  added  to  the  increasing  labor 
of  their  own  population. 

By  this  means  the  country  was  rapidly  developed  in  the  indus- 
tries in  which  their  slaves  were  employed,  and  very  soon  laws 
were  enacted  looking  to  the  extinction  of  slavery.  In  some  of 
those  States,  if  not  in  most  of  them,  the  law  provided  that  all  per- 
sons of  the  African  race  born  after  the  passage  of  the  law,  should 
be  free  after  they  arrived  at  the  age  of  twenty-five.  The  continu- 
ous flow  of  emigration  from  Europe  rendered  more  and  more  the 
usefulness  of  slave  labor  unnecessary  to  do  the  work  of  the  country. 
The  condition  of  the  people  of  the  South,  not  having  the  same  ad- 
vantages from  immigration,  and  slave  labor  being  still  in  great  de- 
mand there,  it  was  in  the  natural  course  of  trade,  especially  after, 
the  prohibition  of  the  slave  trade  in  1808,  that  the  demand  would 
be  supplied  by  purchasing  the  slaves  in  the  Northern  States,  by 
paying  to  their  owners  a  reasonable  compensation  for  them.  This 
was  fair  dealing,  without  any  thought  of  wrong  done  by  either 
party,  and  was  an  advantage  to  the  North  in  getting  rid  of  most  of 
their  slaves,  that  they  did  not  need,  and  to   the  South  in  the  in- 


13 

crease  of  their  labor  for  the  development  of  their  industries.  Mr. 
Clay,  of  Kentucky,  a  slave  owner,  was  a  member,  and  I  believe 
president,  of  an  Emancipation  Society,  organized  to  send  emanci- 
pated negroes  to  Liberia,  in  Africa.  This  was  before  the  slavery 
agitation  in  the  North  had  alarmed  the  Southern  people  in  regard 
to  the  safety  of  their  property  in  slaves.  He,  some  years  before 
the  year  i860,  stated  in  a  speech,  that  at  about  that  year  Kentucky 
would  be  in  a  situation  to  free  the  slaves  in  that  State.  Why  did 
he  say  so?  Obviously,  because  he  calculated,  that  by  that  time 
the  increase  of  free  labor,  and  the  enhancement  of  the  price  of 
land  would  render  slave  labor  unprofitable  in  most  parts  of  that 
State.  It  is  probable  his  prediction  would  have  been  verified,  had 
there  been  no  exciting  agitation  of  the  subject  of  slavery.  The 
time  when  other  States  would  have  been  in  a  similar  condition, 
would  have  depended  much  upon  the  character  and  value  of  and 
demand  for  its  productions,  besides  the  sufficiency  of  free  labor 
and  the  high  price  of  land. 

Another  subject,  preparatory  to  a  full  understanding  of  why  this 
natural  equality  was  applied  to  the  negro  race,  must  be  considered. 
That  was,  the  difference  in  the  material  interests  prevailing  in  the 
North  and  in  the  South.  The  condition  of  things  in  the  North 
was  adapted  to  merchandise,  commerce,  manufacture  and  ship- 
ping, and  regularly  continued  to  become  more  so,  from  time  to 
time.  That  made  it  to  the  interest  of  the  people  to  have  the  gen- 
eral government  shaped  in  its  action  to  promote  those  interests, 
by  a  liberal  construction  of  the  ("onstitution. 

The  condition  of  things  in  the  South  was  favorable  to  agriculture 
much  more  exclusively,  which  did  not  require  to  be  promoted  by 
the  action  of  the  general  government,  and  the  people  were  in  favor 
of  a  strict  construction,  which  would  prevent  the  government 
from  being  specially  devoted  to  promote  the  material  interests  of 
the  North.  This  difference  in  material  interests  and  political 
views  between  the  sections  rapidly  increased,  and  became  more 
distinct  as  time  passed.  During  the  first  twelve  years  ot  the  ex- 
istence of  the  government  (from  the  4th  of  March,  1789),  its  ad- 
ministration was  most  favorable  to  Northern  interests  and  political 
views. 

At  the  end  of  that  time  a  great  polttical  revolution  occurred,  in 
which  parties  were  formed,  the  statesmen  in  the  North  being  call- 
ed federalists,  and  those  in  the  South  republicans,  and  which  based 
the  action  of  the  government  generally  upon  a  strict  constrnction 
of  the  Constitution  most  favorable  to  Southern  interests,  and  this 
continued  uninterruptedly  for  twenty-four  years.  The  struggle  that 
produced  this  change  was  of  the  most  exciting  and  acrimonious 
character,  that  fixed  in  the  minds  of  the  people  of  each  party  a  set- 
tled conviction  of  the  right  of  each,  according  to  the  dictates  of 
the  interest  of  each,  which   remained  permanently,  and  continued 


14 

the  struggle  indefinitely.  This  division  of  political  sentiment  was 
not  always  confined  to  each  section,  but  was  generally  so.  The 
federalists  for  a  time  seemed  to  be  utterly  overwhelmed.  But  such 
was  not  the  fact.  They  remained  steadfast  to  their  interests,  and 
were  ever  active  in  their  support.  Their  cause  was  made  personal 
as  well  as  political,  and  adherence  to  it  was  made  a  test  of  respect- 
ability and  intelligence  to  a  great  extent.  The  embargo  establish- 
ed in  President  Jefferson's  administration,  and  the  war  with  Eng- 
land|iniPresident  Madison's,  nearly  destroyed  the  foreign  commerce 
of  the  Northern  States,  which  greatly  intensified  the  opposition  of 
the  people  to  the  government.  Statesmen,  editors,  and  preachers 
could  hardly  find  words  of  description  strong  enough  to  express 
the  ruin  of  their  section,  by  the  action  of  the  government,  and  in 
the  New  England  States  they  boldly  advocated  a  separation,  and 
sent  delegates  to  the  Hartford  convention  evidently  to  prepare  for 
it  conditionally.  And  in  denouncing  the  government  they  indulg- 
ed in  the  most  virulent  abuse  of  the  Southern  States  for  their  sup- 
port of  it.  They  argued  that  the  interests  of  the  two  sections  were 
too  dissimilar  to  be  capable  of  being  promoted  under  the  same  gov- 
ernment. If  this  disunion  sentiment  had  spread  more  generally 
over  the  Northern  States,  and  the  war  had  continued  a  year  longer, 
it  is  not  at  all  improbable  that  a  number  of  the  Northern  States 
would  have  seceded  from  the  Union. 

During  the  administration  of  President  John  Quincy  Adams 
there  was  a  radical  change  in  the  action  of  the  government,  by  the 
enactment  of  the  protective  tariff  of  1828,  and  other  measures 
favorable  to  the  interests  of  the  Northern  people,  and  prejudicial 
to  the  interests  of  the  Southern  people.  This  aroused  a  most  vio- 
lent opposition  to  the  action  of  the  government  in  the  Southern 
States,  which  was  most  prominently  exhibited  in  South  Carolina 
in  1832,  by  a  preparation  to  secede  from  the  Union.  There  were 
great  numbers  of  people  in  other  Southern  States,  who  took  sides 
with  South  Carolina,  but  not  enough  to  put  other  States  in  the 
same  attitude.  President  Jackson's  proclamation,  that  threatened 
force  to  prevent  the  secession,  brought  a  serious  issue  upon  the 
country,  which  called  in  requisition  the  patriotism  of  Congress  to 
settle  it.  It  was  done  by  the  passage  of  a  law  which  gradually  re- 
duced the  tariff  prospectively  through  a  number  of  years,  so  as  to 
bring  it  to  a  revenue  standard.  This  satisfied  the  South,  but  was 
a  progressive  damage  to  the  interests  of  the  North,  by  which  they 
became  again  dissatisfied  with  the  operation  of  the  government. 
Thus  has  it  been  shown  repeatedly,  that  when  the  government  was 
shaped  in  its  action  to  suit  the  material  interests  of  one  section,  a 
dissatisfaction  would  be  produced  in  the  other,  that  created  a 
strong  disposition  for  a  separation,  though  not  extensive  enough  to 
effect  that  object  in  any  instance. 

The  ruling  motive  in  each  section  in  the  effort  to  shape  the  gov- 


15 

eminent  to  suit  it  in  each  instance,  was  self-interest.  It  takes  a 
very  wise  and  impartial  man  to  see  any  difference  or  conflict  be- 
tween his  interest  and  the  public  good.  It  is  equally  so  with  po- 
litical parties,  with  sections,  and  with  nations. 

This  success,  last  mentioned  of  the  Northern  people,  was  partly 
accidental  from  the  election  of  John  Quincey  Adams  president, 
and  it  was  short  lived.  They,  therefore,  prosecuted  with  more 
vigor  the  measure  that  they  had  acted  on,  before  and  after  the  war 
of  1812,  to  obtain  a  [controlling  power  in  the  government.  This 
was  to  exclude  slavery  from  the  territories,  in  order  to  increase 
the  number  of  free  States.  While  this  was  the  object  aimed  at  by 
the  politicians,  there  had  been  long  a  growing  sentiment  of  anti- 
slavery  amongst  the  people  that  was  directed  either  to  a  seperation 
of  the  Northern  free  States  from  the  slave  States,  or  to  its  gradual 
extinction  in  the  whole  country,  as  one  or  the  other  might  become 
practicable.  This  sentiment  was  based  upon  the  natural  equality, 
and  inalienable  rights  of  the  negro  race  equally  with  the  white 
race.  Both  objects  being  sought  tended  towards  the  same  general 
result]of  antagonism  to  the  slave  institution  of  the  Southern  States. 
There  were  then  a  considerable  number  of  them  in  New  Jersey  and 
Delaware,  and  a  few  in  each  of  the  States  of  New  York,  Rhode  Is- 
land, Connecticut  and  Pennsylvania,  as  shown  by  the  census.  The 
existence  of  them  there  did  not  prevent  a  common  sentiment  of 
opposition  to  slavery  in  those  States,  as  well  as  in  other  Northern 
and  Western  free  States. 

As  preparatory  to  some  notice  of  the  means  used  in  this  last 
great  and  successful  effort  of  the  Northern  people  to  shape  the  gov- 
ernment for  the  promotion  of  their  own  interest,  it  is  important  to 
bring  to  view  the  exact  relations  between  the  States  as  members  of 
the  Union.  In  respect  fo  their  internal  regulations  and  domestic 
institutions  they  were  as  foreign  to  each  other  as  any  two  inde- 
pendent nations.  By  the  law  of  nations  one  State  had  no  right  to 
interfere  with  another,  or  to  allow  their  citizens  to  do  it,  to  the  in- 
jury of  the  rights  of  persons  or  property  of  such  other  State.  Any 
such  interference  when  allowed  or  encouraged  to  an  extent  amount- 
ing to  a  serious  grievance  would  be  cause  of  war  as  between  any 
two  independent  nations.  The  several  States,  whether  free  or 
slave  States,  in  adopting  the  Constitution  of  the  United  States  con- 
tracted a  much  more  intimate  relation  by  assuming  additional  ob- 
ligations, and  sanctioning  those  referred  to  as  being  imposed  by 
the  law  of  nations.  What  was  meant  in  the  preamble  by  the  ex- 
pression. "We  the  people  of  the  United  States  in  order  to  (amongst 
other  things)  secure  the  blessings  of  liberty  to  ourselves  and  our 
posterity  do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America?"  "We  the  people"  then  were  neither  the  negroes 
whether  slaves  or  free  persons.  They  constituted  no  part  of  the 
people  in  whom  the  sovereignty  had  been  vested  in  the  States.    At 


16 

that  time  Massachusetts  was  a  free  State,  and  had  a  law  which  was 
in  force  long  afterwards,  which  made  the  marriage  of  white  per- 
sons with  negroes,  mulattoes  and  Indians  void.  A  similar  law  ex- 
isted in  Virginia.  In  Maryland  there  was  a  punitory  law  on  the 
same  subject.  And  in  none  of  the  States  had  the  free  negroes 
been  given  privileges  or  rights  equal  to  those  given  to  white  per- 
sons. They  were  then,  as  they  ever  had  been  regarded,  an  abject 
inferior  race,  and  did  not  constitute  a  part  of  the  people  in  a  polit- 
ical sense.  The  words  "to  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,"  surely  did  not  refer  to  negroes  or  their 
descendants.  The  negroes  were  not  the  persons  referred  to  in  the 
clause  of  the  Constitution,  which  reads:  "The  citizens  of  each 
State  shall  be  entitled  to  all  the  privileges  and  immunities  of  citi- 
zens in  the  several  States."  So  it  was  held  by  the  court  in  Con- 
necticut, and  afterwards  by  the  Supreme  Court  of  the  United 
States.  Ohio,  a  free  State,  in  1807  passed  a  law  preventing  free 
negroes  from  settling  in  that  State  except  upon  giving  bond  of  $500 
conditioned  for  his  good  behavior,  etc.  The  right  to  vote  was 
confined  to  free  white  men  in  the  free  States  of  Delaware,  Illinois, 
Indiana,  Ohio,  and  Connecticut.  This  will  suffice  to  show  the 
political  status  of  the  negro  as  to  citizenship  long  after  the  adop- 
tion of  the  Constitution,  even  in  the  free  States.  Abundant  other 
evidence  of  it  might  be  shown.  A  still  more  pertinent  provision, 
establishing  the  relation  between  the  States,  in  the  nature  of  a 
treaty  stipulation  between  them  individually  as  separate  States, 
reads  as  follows: 

"No  person  held  to  service  or  labor  in  one  State  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law 
or  regulation,  be  discharged  from  such  service  or  labor,  but  shall 
be  delivered  upon  claim  of  the  party  to  whom  such  service  or  la- 
bor may  be  due."  The  persons  herein  referred  to  were  univer- 
sally held  to  include  negro  slaves.  What  obligation  did  free 
Massachusetts  come  under  to  the  adjoining  State  of  Connecticut 
if  a  slave  belonging  to  a  person  of  the  latter  State  escaped  into 
the  territory  of  the  former  State,  and  was  followed  and  claimed 
by  him?  First  it,  as  a  State,  all  of  its  officers  and  people  were 
bound  to  recognize  that  the  slave  was  the  lawful  property  of  the 
said  owner,  upon  his  showing  his  right  to  the  slave  by  the  laws 
of  Connecticut,  notwithstanding  slavery  had  been  abolished  in 
Massachusetts.  Secondly,  it  was  bound  as  a  State  to  take  such 
active  measures  as  were  necessary  to  secure  to  the  said  owner  the 
delivery  of  his  property.  The  obligation  was  not  a  negative  one 
to  permit  the  owner  to  recapture  the  slave  if  he  could.  It  was  a 
positive  duty  that  required  action  on  the  State  through  its  au- 

After  that,  and  even  after  the  election  of  Abraham  Lincoln, 
the  majority  of  the  people  of  the  United  States  were  anxious  to 


17 

thorities  to  remove  eVery  obstacle  that  might  be  made  by  its  own 
citizens,  so  as  to  have  its  own  officers  acting  for  the  State  to  de- 
liver the  slave  to  the  owner.  Ohio,  a  free  State,  was  under  the 
same  obligation  to  Kentucky,  and  so  with  all  the  other  States  to 
each  other.     . 

There  i?  another  clause  establishing  the  relation  between  the 
States  as  follows:  "A  person  charged  in  any  State  with  treason, 
felony  or  other  crime,  who  shall  flee  from  justice,  and  be  found 
in  another  State,  shall,  on  demand  of  the  executive  authority  of 
the  State  from  which  he  fled,  be  delivered  up  to  be  removed  to 
the  State  having  jurisdiction  of  the  crime." 

This  requires  every  State  to  respect  the  right  of  every  other 
State  to  determine  what  facts  within  it  shall  constitute  a  felony 
or  other  crime,  and  when  a  charge  is  made  against  a  person  who 
has  committed  it  and  fled  to  another  State  other  than  the  one 
in  which  he  was  present  and  acting  in  the  commission  of  it,  and 
he  is  found  in  such  other  State,  that  State,  in  which  he  is  found 
and  demanded,  has  no  right  to  refuse  or  fail  to  deliver  him  up, 
because  the  facts  charged  would  not  be  a  crime  in  such  other 
State. 

Every  officer  of  every  State  and  of  the) United  States  take  an 
oath  to  perform  the  duties  of  his  office  according  to  the  Constitu- 
tion of  the  United  States,  which  contains  these  provisions. 
They,  as  expressly  stated  in  the  Constitution,  constitute  the  su- 
preme law  of  the  land  in  every  State,  "anything  in  the  Consti- 
tution or  laws  of  any  State  to  the  contrary  notwithstanding." 

They  imposed  an  obligation  more  binding  than  a  treaty  by  be- 
ing a  part  of  the  Constitution  of  every  State, — being  part  of  that 
of  the  United  States.  A  State  that  was  seriously  injured  by  the 
failure  of  another  State  to  comply  with  these  obligations,  had  no 
recourse  directly  upon  the  sister  State;  for  by  the  Constitution 
one  State  cannot  enter  into  any  agreement  or  compact  with  an- 
other State,  nor  enter  into  war  against  another  State  while  being 
in  the  same  Union  of  States,  and  under  the  same  Constitution. 
That  of  itself  should  have  added  to  the  constitutional,  a  high 
moral  obligation  for  their  faithful  observance. 

During  President  Washington's  administration  there  was  a 
law  passed  by  Congress  to  enforce  the  provision  requiring  the  re- 
turn of  fugitive  slaves,  and  another  one  in  1856,  which  were  sus- 
tained by  the  supreme  court  as  constitutional.  Very  soon  after 
the  Northern  States  had  gotten  rid  of  most  of  their  slaves,  the 
.sentiment  that  slavery  was  a  moral  and  political  evil  became 
general  if  not  universal,  and  that  greatly  aided  in  the  efforts  of 
all  sorts  to  shape  the  government  to  be  conformable  to  the 
Northern  interests. 


18 

In  1820  it  manifested  itself  upon  the  admission  of  Missouri 
into  the  Union.  After  an  exciting  struggle  in  Congress  it  was 
admitted  as  a  slave  State  by  a  compromise,  in  wi^ich  it  was  agreed 
that  any  States  thereafter  formed  in  territory  north  of  36}^  degrees 
north  latitude  should  only  be  admitted  as  free  States,  and  those 
south  of  said  line  should  be  admitted  either  as  slave  or  free  States 
as  might  be  determined  by  such  States,  This  gave  the  North  a 
great  advantage  in  the  division  of  the  territory.  President  Wash- 
ington in  his  farewell  address  had  advised  strongly  against  sec- 
tional divisions.  JeflFerson,  then  still  alive,  in  writing  to  a  friend, 
said  that  "he  considered  it  the  death  knell  to  the  Union;"  that  "a 
geographical  line,  coinciding  with  a  marked  principle  moral  and 
political,  once  conceived  and  held  up  to  the  angry  passions  of 
men,  will  never  be  obliterated,  and  every  new  irritation  will  make 
it  deeper  and  deeper."  In  this  expression  of  regret,  he  evidently 
referred  to  the  moral  principle,  involved  in  the  slavery  question, 
and  to  the  political  principle,  involved  in  the  promotion  of  mu- 
tual interests,  both  of  which  were  well  calculated  to  arouse  the 
passions  of  men,  on  both  sides  of  the  geographical  line,  that  had 
been  established.  It  resulted  as  he  then  feared  it  would.  For 
by  the  efforts  of  the  Northern  States  all  of  the  territories  after- 
wards were  made  free  States,  or  held  as  free  territory  practically, 
notwithstanding  the  law  of  Congress  in  1850  permitted  the  slave 
holders  to  carry  their  slaves  into  said  territories,  and  there  hold 
them  as  lawful  property,  and  the  supreme  court  in  1856  decided 
that  Congress  had  no  power  to  prevent  it. 

The  moral  principle  referred  to,  which  related  to  opposition  to 
slavery,  though  it  had  long  been  exerting  its  influence,  became 
more  and  more  active  continuousl}^  after  the  compromise  in  1832 
on  the  tariflf,  by  which  the  Northern  material  interests  were  not 
promoted  by  the  action  of  the  government,  as  they  had  been  dur- 
ing the  administration  of  John  Quincey  Adams.  The  effort  to 
acquire  free  territory  created  a  large  party  called  the  Free  Soil 
party.  A  more  extreme  anti-slavery  partj'  were  known  as  Abo- 
litionists, whose  professed  principle  of  action  was  exhibited  by 
Joshua  Giddings,  who  was  the  first  man  of  that  party  elected  to 
Congress.  At  the  Chicago  convention  he  offered  the  following 
resolution: 

"That  we  solemnly  reassert  the  self-evident  truths,  that  all 
men  are  endowed  by  their  creator  with  certain  inalienable  rights, 
among  which  are  those  of  life,  liberty  and  the  pursuit  of  happi- 
ness, that  governments  are  instituted  among  men  to  secure  the 
enjoyment  of  these  rights."  In  support  of  this  he  said,  "I  offer 
this  because  our  party  was  formed  upon  it.  It  grew  upon  it.  It 
has  existed  upon  it.-— And  when  you  leave  out  this  truth  you 


]9 

leave  out  the  party."  Tl^,  at  that  time  w^as  an  after- thought, 
to  hold  forth  one  amongst  a  number  of  political  principles  for 
their  agitaticn  of  slavery  in  the  South.  And  if  it  had  been  in 
its  origin  a  ground  claimed  for  their  action,  it  would  have  been 
clearly  a  misapplication  of  the  principle  as  it  was  intended,  for  it 
would  have  been  an  assertion  of  it  by  one  class  of  persons  for  the 
benefit  of  another  class,  and  not  the  right  of  self-defense. 

By  the  joint  influence  of  these  two  parties  the  Northern  States 
passed  laws,  which  in  effect  prevented  slave-holders  from  recap- 
turing their  slaves,  that  were  decoyed,  or  voluntarily  fled,  to  the 
free  States,  by  which  the  Southern  people  lost  large  numbers  of 
their  slaves  and  slave  propert}'  in  the  border  States  was  greatly 
diminished  in  value.  This  was  vindicated  by  Senator  Sumner  of 
Massachusetts,  in  1854.  He  said;  "To  the  overthrow  of  the  slave 
power  we  are  summoned  by  a  double  call,  one  political,  and  the 
other  philanthropic,  first,  to  remove  an  oppressive  tyranny  from 
the  National  government,  and,  secondly,  to  open  the  gates  of 
Emancipation  in  the  slave  States."  In  alluding  to  the  law  of 
Congress  to  enforce  the  return  of  fugitive  slaves'  he  said,  "The 
Fugitive  Slave  Bill,  monstrous  in  cruelty,  as  in  unconstitutional- 
ity is  a  usurpation  which  must  be  opposed."  This  was  the  com- 
mon sentiment  of  the  leading  men  of  the  party,  by  which  the 
Northern  States  refused  to  take  any  active  steps  to  comply  with 
their  constitutional  obligation  for  the  return  of  the  fugitive 
slaves,  and  in  effect  nullified  the  law  of  Congress  for  that  pur- 
pose, which  had  been  decided  by  the  Supreme  Court  to  be  con- 
stitutional. In  obedience  to  this  sentiment  the  governors  of  the 
States  of  Ohio,  New  York  and  Maine  refused  to  honor  requisi- 
tions for  the  return  of  persons,  who  had  been  indicted  for  steal- 
ing slaves,  upon  the  principle  doubtless,  that  a  human  being  was 
not  a  subject  of  larceny,  thereby  violating  the  clause  in  the  Con- 
stitution, which  required  the  return  of  criminals,  that  were  in- 
dicted for  felonies  according  to  the  laws  of  the  Southern  States, 
that  had  a  right  to  determine  what  acts  done  within  them  amount- 
ed to  a  felony. 

Just  in  proportion  to  the  agitation  and  influence  of  the  opposi- 
tion to  slavery  in  the  North,  the  people  of  the  South  became 
more  and  more  aroused  in  support  of  their  peculiar  interest,  until 
it  pervaded  all  classes  of  persons, — those  that  had  slaves,  and 
those  who  had  none.  It  is  not  my  purpose  to  rehearse  the  angry 
altercations,  or  the  opprobrious  epithets  uttered  on  each  side 
against  the  other. 

Mr.  vSeward  put  the  issue  before  the  Southern  Senators  in  a 
.speech  in  1858,  as  follows: 

"The  interests  of  the  white  race  demand  the  ultimate   emanci- 


20 

pation  of  all  men.  Whether  that  con^mmation  shall  be  allowed 
to  take  effect  with  needful  and  wise  precautions  against  sudden 
changes  and  disaster,  or  be  hurried  on  by  violence,  is  all  that 
remains  for  j^ou  to  decide."  This  was  full  notice  served  upon 
the  country  of  what  was  designed  by  the  Republican  part}'-,  by 
the  statesman  who  did  more  than  any  one  else  to  organize  that 
party,  by  the  combination  of  other  parties  into  the  crusade  against 
slavery. 

After  that,  and  even  after  the  election  of  Abraham  L^incoln. 
the  majority  of  the  people  of  the  United  States  were  anxious  to 
preserve  the  Union,  if  there  could  be  any  settlement  of  the  ques- 
tions at  issue  honorable  to  both  sides,  though  the  extreme  parti- 
sans on  both  sides  preferred  a  dissolution  of  it.  The  effort  to 
accomplish  the  reconciliation  came  from  the  Southern  side. 
In  the  Congress  of  i860,  Senator  Crittenden,  ot  Kentucky,  of- 
fered a  resolution  to  inaugurate  an  amendment  to  the  Constitu- 
tion to  re-establish  the  line  of  36)^2  degrees  of  north  latitude,  as 
in  the  Missouri  compromise,  for  a  settlement.  The  legislatures 
of  Virginia  and  Kentucky  approved  it.  It  was  offered  again  in 
the  Congress  of  186 1,  before  the  inauguration  of  President  Lin- 
coln. The  vote  on  it  stood  eighteen  for  and  twenty  against  it, — 
the  majority  all  being  Republicans.  Mr.  Douglas,  in  his  speech 
in  the  Senate  upon  the  subject,  said:  "The  only  difficulty  in  the 
way  of  amicable  settlement  is  with  the  Republican  party." 

The  Legislatures  of  Virginia  passed  a  resolution  requesting  all 
the  States  of  the  Union  to  send  delegates  to  a  Congress  to  meet 
in  Washington  on  the  4th  of  February,  1861,  to  take  into  con- 
sideration the  affairs  of  the  country,  and  devise  some  plan  if 
possible  by  which  the  Union  under  the  Constitution  would  be 
preserved,  and  harmony  once  more  restored.  In  pursuance  to 
that  call,  delegates  from  sixteen  Northern  and  five  Southern 
States  appeared  in  the  Peace  Congress  (as  it  was  called),  over 
which  Ex-President  John  Tyler  presided.  Senator  Salmon 
P.  Chase,  a  leader  in  the  Republican  party,  representing 
Ohio,  and  who,  as  then  expected,  was  shortl)^  afterwards 
appointed  Secretary  of  the  Treasury,  said  in  substance,  ad- 
dressing his  discourse  to  the  Southern  delegates,  that  the 
Northern  States  would  not  surrender  their  advantage  from 
the  late  election,  which  they  considered  was  a  sanction  of 
their  principles;  that  they  would  not  consent  for  slavery  to  be  es- 
tablished in  the  territories,  and  that  they  would  not  aid  in  the 
return  of  fugitive  slaves,  and  that  the  provision  of  the  Constitu- 
tion requiring  them  to  do  it  was  "a  dead  letter,"  and  would  not 
be  complied  with.  His  only  suggestion  for  a  settlement  was, 
that  if  a  master  could  prove  his  ownership  of  a  fugitive  slave, 


21 

he  should  be  paid  for  the  value  of  his  services  from  the  national 
treasury,  and  let  the  negro  go  free.  This  speech  being  backed  by  a 
large  majority  of  the  delegates,  destroyed  all  hopes  of  a  settle- 
ment. 

The  two  efforts  of  the  South  for  a  settlement  having  thus  failed, 
nothing  was  left  them  but  to  live  in  the  Union  on  terms  of  ine- 
quality, or  take  steps  to  separate  from  it. 

Mr.  Webster,  the  great  Union  expounder  of  the  Constitution, 
had  said  in  a  speech  in  185 1,  "If  the  Northern  States  refuse  wil- 
fully and  deliberately  to  carry  into  effect  that  part  of  the  Consti- 
tution which  requires  the  restoration  of  slaves,  the  South  would 
no  longer  be  bound  to  observe  the  compact.  A  bargain  broken 
on  one  side  is  broken  on  all  sides."  To  Southern  statesmen  this 
doctrine  presented  a  possible  means  of  protecting  the  institutions 
of  the  South,  and  was  generallj^  sanctioned  'bj'  them  in  advocat- 
ing the  secession,  which  brought  on  the  war,  in  which  the  South 
was  overwhelmed  by  superior  means  and  numbers. 

After  the  war  commenced,  and  the  Northern  armies  were  filled 
promptly  under  a  resolution  of  Congress,  giving  a  pledge  to  the 
country,  that  the  war  was  waged  to  preserve  the  Union,  with 
all  the  dignity,  equality  and  rights  of  the  States  unimpaired, 
"  and  not  for  the  purpose  of  overthrowing  or  interfering  with  the 
rights  or  established  institutions  of  those  States,"  the  extreme 
wing  of  the  party  urged  the  President  to  issue  a  proclamation 
freeing  the  slaves.  For  a  time  he  objected,  saying,  "I  do  not 
want  to  issue  a  document,  that  the  world  will  see  must  necessarily 
be  inoperative,  like  the  Pope's  bull  against  the  comet."  Still 
the  abolition  pressure  was  so  strong  that  in  a  few  days  after- 
wards the  proclamation  was  issued  in  obedience  to  the  principle 
"that  all  men  are  created  equal."  At  the  close  of  the  war.  Presi- 
dent Johnson  reconstructed  the  Southern  States  upon  their  sur- 
rendering what  he  deemed  to  have  been  the  issues  of  the  war, 
to-wit :  The  freedom  of  the  slaves,  and  the  right  of  secession. 
But  being  a  new  convert,  he  omitted  or  declined  to  recognize  and 
enforce  the  additional  principle,  that  the  negroes  as  well  as  the 
whites  were  endowed  by  the  Creator  with  certain  inalienable 
rights,  which  would  secure  their  equality  as  citizens  of  the 
United  States. 

To  accomplish  that  object,  there  were  two  insurmountable 
difficulties  under  his  plan  of  reconstruction.  First,  it  had  been 
previously  decided  by  the  Supreme  Court,  with  six  of  the  nine 
judges  agreeing  to  it,  that  Congress  had  no  power  under  the 
Constitution  to  naturalize  a  negro  so  as  to  make  him  a  citizen  on 
an  equality  with  white  people.  And  secondly,  if  the  members 
elected  to  Congress  from  the  eleven  »Southern  States,  had  been 


admitted  to  seats,  a'  jr   in   President  Johnson's  plan, 

the    14th  and  15*^'  xits  to  the  Constitution  could  not 

have  been  passed  1  ,g  the  negroes  on  an  equality  with  the 

white  people  in  the  c      ^ment  of  legal  and  political  rights. 

Therefore  it  became  necessary  to  abolish  the  governments  that 
had  been  erected,  in  order  to  pass  those  two  amendments,  and 
thereby,  on  the  principle  of  the  natural  equality  announced  in 
the  Declaration  of  Independence,  to  introduce  into  the  Republi- 
can family  of  American  citizenship,  for  whom  alone,  as  white 
people,  that  principle  was  originally  intended,  four  millions  of 
negroes  of  African  descent.  And  that  object  has  been  prosecuted 
by  the  Northern  States,  not  only  to  enforce  a  religious  sentiment 
but  also  as  the  means  of  shaping  the  general  government  to  pro- 
mote the  peculiar  material  and  pecuniary  interests  of  the  North- 
ern people,  to  the  great  prejudice  of  those  of  the  Southern  people. 

I  have  now  traced  the  points  of  political  history  in  this  great 
struggle  between  the  different  sections,  North  and  South.  But 
to  understand  the  animus  of  its  origin  and  progress  properly,  we 
must  raise  our  view  in  seeking  for  a  cause  far  above  and  more 
potent  than  the  mere  political  issues  involved  in  it. 

In  doing  so,  we  will  find  that  it  was  a  sentiment  generated  in 
the  North  upon  a  conviction  of  right,  and  in  the  South  a  senti- 
ment upon  a  conviction  of  wrong  done  to  its  people.  History 
shows  us  that  men's  passions  are  aroused  to  put  forth  greater 
efforts  upon  a  pervading  sentiment,  that  takes  possession  of  their 
minds,  than  is  ever  produced  by  the  exercise  of  judgment. 

It  may  be  started  upon  some  prominent  idea  of  human  rights, 
or  of  wrongs,  or  of  religious  enthusiasm,  and  grow  and  spread  un- 
til it  becomes  a  controling  sentiment,  that  sinks  every  other  con- 
sideration into  comparative  insignificance.  Such  a  sentiment 
animated  the  people  of  Europe  in  the  Crusades.  Such  a  senti- 
ment animated  the  people  of  America  in  the  war  of  independence. 

In  former  times  such  cruelties  had  been  inflicted  in  the  punish- 
ment of  slaves  and  of  criminals,  in  religious  persecutions,  and  in 
the  African  slave  trade,  as  produced  a  revulsion  of  public  senti- 
ment before  the  end  of  the  last  century,  which  started  a  move- 
ment in  France,  England  and  America  in  opposition  to  it,  which 
spread  and  increased,  in  varying  intensity,  and  means  of  accom- 
plishment, so  as  to  embrace  a  large  body  of  the  people  of  the 
Northern  States.  There  being  then  no  self-interest  to  oppose  it, 
and  it  being  stimulated  by  extravagant  stories  of  the  cruelty  of 
Southern  masters  to  their  slaves,  it  was  worked  up  into  an  irre- 
sistible religious  sentiment  against  slavery,  which  in  the  end 
would  admit  of  no  compromise.  In  the  Southern  States,  this 
drift  of  sentiment  met  with  the  opposition  of  self-interest,   that 


23 

made  them  stand  upon  their  constitutional  rights,  and  just  in 
proportion  as  they  were  infringed  upon,  they  became  more  de- 
termined to  maintain  them,  against  the  what  they  considered  un- 
just interference  of  others  in  their  domestic  relations.  This  in- 
terference, by  the  agitation  of  slavery  in  the  North  and  its  con- 
sequent results,  aroused  a  sentiment  of  antagonism  that  finally 
pervaded  most  of  the  people  of  all  classes  in  the  Southern  States, 
that  fixed  in  their  minds  a  high  resolve  to  have  their  constitu- 
tional rights  secured  in  the  Union,  or  failing  in  that,  to  withdraw 
from  the  Union  to  control  their  own  public  affairs.  When  at  last 
the  crisis  arrived,  the  sentiment  of  both  sections  was  inflamed  to 
a  pitch  of  desperation,  that  forced  them  into  conflict  irrespective 
of  consequences. 

It  was  really  only  after  the  close  of  the  hostile  struggle,  that, 
upon  deliberate  reflection,  the  principle  "that  all  men  are  created 
equal,  and  are  endowed  with  inalienable  rights,"  was  fully  acted 
on  to  consummate  a  revolution  in  the  government,  much  in  excess 
of  the  original  designs  of  the  federalists  of  the  North. 


8  7  5)5 


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UNIVERSITY  OF  CALIFORNIA,  LOS  ANGELES 

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i^-URL 


JUH2 


1  1951 »  hj  E  C  E  I  V  Ep 

1955    I  MAIN  LOAN  DESK 

MAY3e  1965 


APR? 
1 


-AY  2  21955 

DEC  5      I96tf 
MAR  1  3 1961 

HOM    2^ 

DEC  1  ^  ^^^^^ 


A,M 

7lAl9!ld.lllii8]l|2'3l4 


Form  L-9 
25?rt-2, '43(5205) 


/^ai 


'^    OCT  221968 

OCT  2 1 1969 
RENEWA 


DK  101969 

KENEWAL  J/fN  ICFWS 

REC'D  LO-URli    . 


CD 

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P.M. 

SI  6 


UCSn:'JHrR..,p-:,,^^LLI 


BRARY  FACILITY 


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